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.
November 21, 2023 at 06:00PM
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It's Hard to Get Abortion Reporting Right in the Post-Roe Era - The New Republic
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