Simply banning abortion, for some
conservatives, isn’t enough. So in April, Idaho became the first state to pass
an abortion travel ban, also known by its proponents as the “abortion
trafficking law.” The law criminalizes helping a minor to obtain an abortion
out of state; combined with Idaho’s near-total
ban on abortion, this makes abortion nearly inaccessible for people under
18. Late last month, reports appeared stating that Idaho had seen its
“first ‘abortion trafficking’ arrest,” after the mother of a 15-year-old girl in
Bannock County accused her daughter’s boyfriend and his mother of taking the
girl across state lines for an abortion without the girl’s mother’s consent. Although
the abortion travel ban was in the process of being challenged
in court at that time, the law remained in effect. To some, it looked like
the abortion criminalization machine was revving up, courts be damned. But now
it’s clear that some of the facts in the case were misreported. Instead of
being a clear-cut first “abortion trafficking” case, this now looks like a
better example of the frightening uncertainty of the post-Roe world—and
why that uncertainty presents a very real threat to abortion rights.
The Bannock County case began in
June when a mother made a report to police, resulting in the October arrests of
another mother and her son. Based on the criminal complaint, prosecutors charged
that the accused had “[led], take[n], or entice[d] away” the minor involved, who
is 15, “with intent to keep or conceal” her from her mother, “by transporting
the child out of the state for the purpose of obtaining an abortion.” The
official charge listed in the complaint—which I obtained with a public records
request—is “kidnapping,” not so-called “abortion trafficking.”
While charging documents cannot
convey the full facts of a criminal case, they do indicate what criminal
charges prosecutors have decided to use. But feminist author Jessica Valenti on
October 31 nevertheless dubbed
the case “Idaho’s first ‘abortion trafficking’ arrest” in her Abortion.
Every Day. newsletter, speculating that prosecutors’ decision to charge
with kidnapping rather than “abortion trafficking” should be understood as a
semantic strategy and that it “may have something to do with the fact that the
law is being challenged.” Furthermore, Valenti wrote, “prosecutors used the
exact language of the trafficking law in the kidnapping charge.”
While we cannot rule out the
possibility that prosecutors had the motivations Valenti suggested, this last claim
wasn’t true: The “abortion trafficking” language (18-623
in the state criminal code) was not used, but rather the state’s charge of
“kidnapping in the second degree” (18-4501).
This error was quickly pointed out
by Idaho-based national reproductive rights reporter Kelcie Moseley-Morris. The
reporter who broke
the original story, Shelbie Harris, also subsequently addressed what she called “misconceptions surrounding this
case,” such as the claims about so-called “abortion trafficking”: When she
followed up with Bannock County Senior Deputy Prosecuting Attorney Erin
Tognetti, the prosecutor responded that the trafficking law was “not implicated
in this case.” But Valenti’s version of events circulated much more quickly and
further than any of this local reporting—all before the defendants appeared in
court for their preliminary hearings. I reached out to Valenti via email several times over the last week, asking about these issues, but did not hear back by publication.
In the criminal complaints in this
case (i.e., the list of charges against each defendant), Tognetti, the
prosecutor, stated that the purpose of the alleged kidnapping was for an
abortion. Arguably, this decision, alongside the state’s unusual “abortion
trafficking” law, left the door open for some uncertainty—was this a stealth
abortion travel ban case? But then, in her few comments on the case, the
prosecutor also maintained that the “abortion is not an element of the charged
offense.” That in turn opened the door for Bannock County Chief Public Defender
David Martinez, who is representing both defendants, to file
a motion to strike mention of abortion from the criminal complaints. “The
prosecutor kind of made that an issue by including that,” said
Martinez. “The insertion of an overtly political argument in the complaint
serves no legal purpose and should be struck,” the motion stated.
On its heels but seemingly
unrelatedly, the week after Martinez filed his motion in the kidnapping case,
there was a development in the state-level challenge to the abortion travel ban,
the so-called “abortion trafficking” law: A judge blocked
all enforcement of it by a temporary
restraining order while the state-level challenge regarding the
constitutionality of the ban proceeds. As U.S. Magistrate Judge Debora K.
Grasham wrote
in her decision, the state cannot craft a law “muzzling the speech and
expressive activities of a particular viewpoint with which the state disagrees
under the guise of parental rights.” Kelly O’Neill, an attorney at Legal Voice,
the group representing those who brought the challenge, told me that they are “confident
that this is the step in the right direction for finding this law
unconstitutional.”
So what’s actually going on in this
alleged kidnapping case? Valenti could be right that the prosecutor decided not
to charge the mother and son defendants under the abortion travel ban as a way to
hedge against the possible temporary restraining order on the ban’s enforcement—something
she called “a pretty slick move, allowing prosecutors to charge the two with
abortion trafficking without citing the statute specifically.” But she was
incorrect about something she claimed to support that argument: Prosecutors had,
in fact, not used “the exact language of the trafficking law” in the
criminal complaint, but the language of the kidnapping law.
So far in this case, we only have
the police’s side of the story, one in which they make claims about drug use,
consent, and abortion that are impossible to verify right now—certainly not at
the speed of newsletters. The plain reading of the available documents from
local law enforcement, as well as the prosecutor’s direct statement to a
reporter, is that “the Idaho Abortion Trafficking statute is not implicated in
this case.” That may not be the whole story. We may never have the whole
story.
Given all that, what’s the problem
with reporting this case as though it is the first “abortion
trafficking” case? Quite simply, it doesn’t appear to be an abortion
trafficking case, not yet, maybe not ever. Despite that, the understandable
fear and anger that resulted from casting the case that way grew larger than
the facts. Spreading that fear and anger can help do the work of reproductive
freedom opponents for them, by making abortion access seem even risker,
possibly dissuading people from getting an abortion. People needing an abortion
may hear that the “abortion trafficking law” was used, and go no further. The
readers of a viral story may not know how even the few available facts of the case contradict the claim that the abortion travel ban was used. They may
not know that the law is temporarily blocked.
That’s not to say that there isn’t reason
to fear prosecutors using these laws in underhand ways. As research from
reproductive justice groups like If/When/How
and Pregnancy
Justice has found, prosecutors may use other charges that don’t explicitly mention
abortion—like the way that Kenlissia
Jones was charged in Georgia with “malice murder” after taking misoprostol in
2015, even with the protections of Roe—to effectively criminalize
someone for abortion without it making headlines as an “abortion” case.
What we do know with certainty in a
case like this is that the criminal legal system is already difficult enough to extract
facts from, even with responsible, thorough reporting. Layer on top of that the
at-times misleading, even if well-intended coverage of abortion after Roe,
along with the ensuing public conversation, and we have a near-perfect
environment in which myths speed ahead of realities.
The truth is that whatever “firsts”
we may hear of in the post-Roe era, abortion criminalization did not
begin in late June 2022. When existing risks are reported as new ones—risks
that abortion rights defenders have been navigating well for years—it makes it harder
to understand what has changed. It can also serve as free public relations work
for anti-abortion groups, who want people fearful of having an abortion,
fearful of helping anyone have an abortion. If only in consideration of the
stakes for the people involved in the case—the defendants, the girl they
allegedly harmed—this tense post-Roe moment is one in which we should proceed
with an appreciation of the power that storytelling can have.