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An Abortion-Seeker Is Not a Victim

Opponents of a Tennessee bill that would criminalize “abortion trafficking” hold signs during a House Health Committee meeting on Feb. 21, 2024, in Nashville.
Photo: George Walker IV/AP

Kay Cook holds signs during a House Health Committee meeting against HB1895, Wednesday, Feb. 21, 2024, in Nashville, Tenn. The bill would create the criminal offense of abortion trafficking of a minor. (AP Photo/George Walker IV)
Opponents of a Tennessee bill that would criminalize “abortion trafficking” hold signs during a House Health Committee meeting on Feb. 21, 2024, in Nashville. Photo: George Walker IV/AP

Tennessee and Oklahoma are the latest states where Republicans are seeking to criminalize “abortion trafficking,” a felony committed when a person “knowingly or intentionally recruits, harbors, or transports a pregnant minor … to procure an illegal abortion or to obtain an abortifacient” without her parent’s consent.

Oklahoma’s proposed law carries a penalty of two to five years’ imprisonment; Tennessee’s, up to 15 years. In addition to criminal prosecutions, these bills allow civil actions on behalf of the aborted “unborn child.” Some authorities in Texas have prohibited abortion-related travel on the roads in their jurisdictions.

The language of the bills is based on the National Right to Life Committee’s model anti-abortion legislation, developed by James Bopp Jr., the far right’s go-to attorney and the man behind Citizens United. Abortion trafficking is one of the novel offenses Bopp fashioned to prevent the “abortion industry” from circumventing bans using such federally regulated practices as telemedicine and fundamental liberties as the right to travel. But the word was not chosen randomly. “Trafficking” was a propitious choice.

For as long as laws have targeted human trafficking, they have paired forced farm, factory, or domestic labor with sex work, conflating incontrovertible economic exploitation with the presumed moral corruption of prostitution.

The Page Act of 1875, perhaps the first U.S. anti-trafficking statute, aimed to control the “importation” of low-wage “coolies” from China and other “Oriental” countries. It charged authorities with intervening when a worker was tricked or coerced into servitude or lured for “lewd and immoral purposes” — that is, prostitution. The Page Act attracted support from diverse, even mutually antagonistic, constituencies: xenophobes and racists, defenders of American labor, opponents of slavery.

In the 1990s, conservative feminists and their evangelical Christian allies, after losing the battle to outlaw pornography, drew support through the same conflation of unsexy labor trafficking with sensationalized accounts of “sex trafficking.” Like 19th-century prostitution abolitionists, they considered voluntary sex work an oxymoron.

Their efforts have been immensely successful. Under the 2000 Trafficking Victims Protection Act and its subsequent iterations, simply doing sex work — even if not by “force, fraud, or coercion,” as the law defines trafficking — makes a person a trafficking victim. And even though other forms of forced labor are three times more prevalent globally than “forced commercial sexual exploitation,” the U.S. State Department recognizes only two categories of human trafficking: sex trafficking and everything else.

The U.S. criminal justice system has also been captured by the zeal to eliminate sex work, regardless of what the sex workers wish. In New York’s Human Trafficking Intervention Courts, for instance, women engaged in sex work are arrested and given the Hobson’s choice of social services aimed at their reformation or prosecution and incarceration. Legal scholars Aya Gruber, Amy J. Cohen, and Kate Mogulescu call this “penal welfare.”

In law and popular discourse, “trafficking” means sex work and sex work means exploitation — whether you’re talking about slavery under armed guard, survival sex by runaway teens, or escort services advertised online by self-employed adults.

“Abortion trafficking” resonates with all these insinuations of deceit, coercion, violence, and exploitation. The language of the new state bills echoes the White-Slave Traffic Act, or Mann Act, of 1910: “a person who shall knowingly transport … a woman or girl for the purpose of prostitution or debauchery”; “aid or assist”; “procure or obtain.”

Like the woman or girl of the Mann Act or the arrested sex worker in New York, the pregnant minor in the imagery of abortion trafficking is passively moved around to be harmed by others — needless to say, against her will. Abortion opponents have long contended that no one would have an abortion if not crushed by poverty, forced by an abusive boyfriend or parent, or misled by feminists and profiteering abortionists. Like prostitution in the eyes of its abolitionists, there is no such thing as a voluntary abortion to a “pro-lifer.”

As for the sex that led to the minor’s pregnancy, it too is presumed to be coerced. Statutory rape law defines the minor as someone too young to make a rational decision to act on her desire — or even to experience real desire. The age of consent for sex is 18 in Tennessee; in Oklahoma it is 16.

The subject’s passivity and inability to know her own mind are inscribed in the new bills in other ways as well. Along with other relatives of the “unborn child,” the pregnant minor may seek civil damages for the fetus’s “wrongful death.” Yet her stated consent to be given an abortion is irrelevant: It does not exculpate the perpetrator.

“Abortion trafficking” is a crime premised on the idea that any young person who has sex, gets pregnant, and seeks an abortion is a victim. But it is not only the antis who deploy the abortion-seeker’s victimhood to draw sympathy and support.

A research letter published recently in JAMA Internal Medicine calls attention to the plight of pregnant rape survivors in red states. “In the 14 states that implemented total abortion bans following the Dobbs decision, we estimated that 519,981 completed rapes were associated with 64,565 pregnancies during the 4 to 18 months that bans were in effect,” write the authors, a group of physicians and public health scholars. Nine of the state abortion bans have no exception for rape. Those that do require that the victim report the assault to the police, which often doesn’t happen.

The number of rapes is extrapolated from data from the Bureau of Justice Statistics’ National Crime Victimization Survey, the Centers for Disease Control and Prevention’s National Intimate Partner and Sexual Violence Survey, and the FBI’s Uniform Crime Reports. The former two instruments survey people about their experiences of sexual violence, whether reported or not. The FBI uses only incidents reported to law enforcement.

The statistics presented in JAMA are horrific. They would be horrific even if the researchers were off by a long shot. In fact, they might be. Samuel Dickman, a doctor at Planned Parenthood Montana and the study’s lead author, told the Dallas Morning News that the numbers were “shockingly high.” A co-author said she was “surprised by the very high numbers.” When scientists are shocked by their results, there might be something wrong with the results.

Quantifying sexual assault is a vexing project. Criminal statutes define the same behavior differently, and people — both offenders and victims — define behavior differently from statute and from each other. Not everything illegal is harmful (like abortion in red states), and not everything harmful (poverty, hunger) is illegal.

These variations show up in the widely divergent BJS and CDC statistics. Estimates from the BJS victims surveys counted 162,940 victims of rape or sexual assault in 2016 and 208,960 in 2017. In comparison, the CDC 2016-17 survey reported that 2.9 million women and 340,000 men had been subject to rape or attempted rape in the previous 12 months.

It boils down to what you call rape. The CDC includes in its rape statistics all incidents of “forced and/or drug-facilitated or alcohol-facilitated penetration.” The BJS does not include the drug- or alcohol-facilitated part. The abortion-ban researchers reached their figure of 519,981 rapes over four to 18 months in 14 states using the CDC’s broader definition, “which adheres more closely to current legal (and publicly accepted) definitions,” they claimed.

But the CDC’s definition is not universally accepted. In 2014, when the agency reported that 1 in 5 women had been raped in their lifetimes, critics homed in on the question that yielded the estimate: How many times had the respondents been vaginally penetrated while “drunk, high, drugged, or passed out and unable to consent?” So was “‘unable to consent’ just one of several situations in which the respondent had had vaginal intercourse,” asked Cathy Young in Time; were those situations lumped in with the times the respondent was drunk or high and had sex, as people frequently do? Where had each respondent drawn the line, Young asked, between being high enough to be incapacitated and incapacitated enough to meet the legal definition of rape?

The distortions yielded by the imprecise question are not trivial. “Incapacitated rapes” comprised nearly two-thirds of the previous-year assaults in the CDC’s findings.

My point is not to reanalyze the rape-related pregnancy study’s statistical analysis. I’m not a statistician, and this is a research letter, which is to a peer-reviewed journal article what a book review is to a book. It doesn’t thrill me that a demonstration of the cruelty of abortion bans may arouse doubt. Credibility is critical.

But more than the numbers themselves, what’s troubling is a methodology that counts people as victims who may not consider themselves victimized and calls acts coercive that may be consensual.

Just as the abortion trafficking bills do.

Naming a victim is a time-honored tactic of political speech: Inspire compassion or outrage for the victim, then present your rescue plan. Here, the pregnant person is a victim if she’s abducted to a clinic where her unborn baby will be “ripped from her womb,” or if she has been raped and now is suffering the additional pain of carrying the rapist’s fetus.

Reproductive coercion — sabotaging birth control, causing an unwanted pregnancy, or controlling its outcome — is not uncommon in abusive heterosexual relationships. But it is exceedingly rare for a man to force a woman to have an abortion; more likely, he’ll try to stop her. Forced abortion by people other than the fetus’s father no doubt also exists, but as a major phenomenon, it is a fantasy of the anti-abortion movement. As for rape, 1 to 5 percent of women who seek abortions do so because they became pregnant through sexual assault.

Of course, a rape survivor should receive compassionate care and the option of a morning-after pill or an abortion. But both anti-trafficking bills and an argument for reproductive rights that foregrounds rape and possibly inflates its incidence contribute to what the scholar Janet Hadley called the “awfulization of abortion.” Both associate the termination of a pregnancy with secrecy, shame, crime, and trauma. With victimization.

A person who is raped is a victim. An abortion-seeker is not a victim. She is a pregnant person who has decided not to have a baby — a normal problem of reproductive life whose solution should be safe, affordable, and simple. Abortion is traumatic only if it is made to be.

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This content originally appeared on The Intercept and was authored by Judith Levine.

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