Could driving someone to get an abortion soon be an act punishable by law? It’s not out of the question, if a newly emboldened group of extremists get their way.
A wave of new anti-abortion ordinances have already been adopted in several Texas counties and are under consideration in many others across the state, according to a Washington Post story published last week. These laws are premised on stopping a new, vague offense that anti-abortion activists have dubbed “abortion trafficking.” The language evokes an unwilling participant—someone being forced by someone else to terminate a pregnancy—but is intended instead to bar people who do want an abortion from accessing care. The idea is fairly new—and entirely the invention of anti-abortion activists and legislators.
These so-called “abortion trafficking” ordinances aim to punish travel, an approach that might first appear unusual or even archaic when it comes to abortion regulations. Some have likened the thinking behind these ordinances, along with the vigilante-style anti-abortion laws like Texas’s Senate Bill 8 that preceded them and whose enforcement model they borrow, to the Fugitive Slave Act of 1850. What distinguished S.B. 8, the Texas six-week abortion ban, was that it came with thousands of dollars in bounties to encourage people to report alleged violators. The “abortion trafficking” bans function similarly: They incentivize people, with cash rewards, to threaten legal action against anyone who travels through their community, either to have or to help someone else have an abortion.
“This really is building a wall to stop abortion trafficking,” Mark Lee Dickson, director of Right to Life of East Texas and leading promoter of the anti-abortion ordinances, told the Post. Dickson, described by Texas Monthly as a “bearded East Texas pastor who favors a backward baseball cap and carries around a plastic toy fetus,” calls himself a “virgin” who attended the January 6 riot at the Capitol—though he claims he did not enter—in support of President Trump. Dickson’s statement about “building a wall” seems intentionally crafted to evoke anti-immigrant panic; Dickson, unsurprisingly, was also one of the leading voices behind S.B. 8.
These new “abortion trafficking” ordinances have gotten a lot of attention in various national outlets over the past month. But less notice was given to how Dickson pointed to a different old law to justify this new wave of bills: the Mann Act, officially the “White Slave Traffic Act of 1910,” a law once used fairly indiscriminately to prosecute nonmarital sex.
What is the Mann Act, and what could a law passed more than 60 years before Roe was decided have to do with abortion? Here’s how the Post described Dickson’s argument:
Asked about the constitutionality of his ordinances, Dickson cites the Mann Act, a federal law from 1910 that makes it illegal to transport “any woman or girl for the purpose of prostitution or debauchery, or for any other immoral purpose.” If the Mann Act is constitutional, he says, so is this.
Unfortunately for Dickson, this is not at all what the Mann Act says. The language forbidding transporting a woman or girl “for any other immoral purpose” in the Act was replaced in 1986 and now reads instead, “any sexual activity for which any person can be charged with a criminal offense.”
Perhaps most importantly, invoking the Mann Act like Dickson is doing offers yet more evidence of how anti-abortion activists, even after ending Roe, continue to push on the limits of the law. They enjoy more influence than ever in judiciaries and legislatures across the country, and they are getting bolder in taking up yet more creative ways to restrict bodily autonomy—as if confirming to the rest of us that it’s their moral goodness alone that can determine what a law means.
This is not the first time anti-abortion activists have repurposed Victorian-era law post-Dobbs as part of their effort to further criminalize abortion. Reviving old laws is all the rage for the post-Roe anti-abortion movement in its efforts to squash further access. Attorneys with Alliance Defending Freedom, a Christian Nationalist law project, have turned to the Comstock Act of 1873 in their attempts to reverse the Food and Drug Administration’s approval of mifepristone, one of two drugs commonly used to self-administer abortion. The return of the Comstock Act, which made it illegal to send “obscene, lewd or lascivious” material by mail (among other prohibitions) and was named after the notorious anti-abortion crusader Anthony Comstock, was bad enough. But it is something else to see the Mann Act now join the ranks.
The Mann Act came out of a social purity movement adjacent to Comstock’s crusade: aligning anti-vice reformers against what they called “white slavery” or prostitution. In 1910, after a few decades of political agitation, the movement scored a major victory after Congress passed the White Slave Traffic Act. As Jessica Pliley, author of Policing Sexuality: The Mann Act and the Making of the FBI and professor of the history of women, genders, and sexualities at Texas State University, explained by phone this week, the Mann Act was intended to prosecute people profiting from commercial sex—but in the hands of enforcers, it expanded into a tool to police nonmarital sex more broadly if the couple involved crossed state, district, or territory lines.
While the Mann Act’s implementation began with interstate prostitution enforcement, Pliley told me, in the 1920s, the object of protection was primarily conceived of as those “who were very, very young and virginal,” and, in some cases, included victims of “interstate kidnapping and rape.” Far from being confined to cops and courts, the Mann Act was a presence in popular culture, with its enforcers valorized in wildly popular films and cheap magazines. “It’s all about tracking down traffickers,” Pliley said of such media at this time. “It’s incredibly sensational, it’s incredibly dramatic.” And you could find it at your neighborhood theater and newsstand.
By the 1930s and 1940s, however, between the Depression, World War II, and several decades of case law, enforcement of the Mann Act had shifted significantly. Where a woman traveling to have sex out of wedlock may have once faced prosecution, courts began to look at the Mann Act as something narrowly related to commercial sex.
As much as Mann Act enforcement shifted over those decades, and while many different kinds of illicit sex were investigated and punished, Mann Act enforcers did not seem to see it as their job to punish people for abortion. Those committed to the law saw abortion as “a different thing,” Pliley said. “This is about sex—and abortion is about something else.”
The Mann Act itself contains nothing in its text about abortion, and as broadly as it was once enforced, abortion was not historically considered under its “immoral purpose” umbrella. In 1986, that “immoral purpose” language was removed. Yet just as there was always a robust popular culture component of the Mann Act, defining its purpose in the public and legal imaginary, there remains a ghost of the Mann Act in a more contemporary movement, one which has great support among the kinds of Christian-right activists who animate anti-abortion movements today. In the modern anti-trafficking movement, images of crusading men out to save women and girls from illicit sexuality, operating with the blessing of God and the law, live on.
This kind of narrative drove the blockbuster success this summer of Sound of Freedom, a product of a kind of QAnon cinematic universe that owes deeply to a century-old trafficking panic. The film allegedly dramatizes already questionable “rescues” of children who are said to have been sold to sex traffickers, “operations” led by the Trump-supporting, self-styled anti–sex trafficking crusader Tim Ballard. When he was invited to the White House, it was to promote the idea of fighting trafficking by building a wall. In hindsight, it should not surprise us at all that a right-wing movement obsessed with these types of narratives would reach back to the Mann Act to craft new legislation.
“Many of us have supported legislation to stop human trafficking,” noted Arkansas Republican state Senator Jason Rapert, not long after Roe was overturned. “So why is there a pass on people trafficking women in order to make money off of aborting their babies?”
If the Mann Act informs this new anti–“abortion trafficking” campaign, it is on a kind of cellular level: It’s an inheritance from the early twentieth century, a way to stake out the moral high ground using sensationalizing language and claims to stand for the innocent. The Texas ordinances have been pitched in that register, and that rhetoric is spreading.
This past May, Idaho became the first state to create a criminal offense termed “abortion trafficking.” The new law makes it a crime to help a minor travel to obtain an abortion or to obtain medication to self-manage an abortion, punishable with up to five years in prison. As in Texas, where driving through a county that has passed such an ordinance for the purpose of abortion was now a crime, the laws grew out of a wing of the anti-abortion movement focused on going beyond state abortion bans to expand the web of criminalization further to anyone who supports someone seeking an abortion.
“I know this is a little facetious,” said Democratic state Senator James Ruchti when the bill was up for debate, “but given the nature of this law, it sounds like you could post somebody at the border and check as you go across and say, ‘Well, I see you have a pregnant woman with you, what’s the purpose of your trip to Oregon?’”
Unlike Texas, in Idaho, the law gives the state attorney general sole discretion to enforce it—overriding local prosecutors, if they decline to prosecute. The law may owe more to model legislation drafted by the group National Right to Life Committee, as the legal historian and University of California law professor Mary Ziegler has written, which suggests giving the attorney general this power. But narratively, Idaho’s “abortion trafficking” ban is also well fed by the likes of Dickson and his trafficking fantasia. Helping a minor travel for an abortion they asked for help obtaining is “kidnapping,” according to one Idaho Christian-right activist, speaking with a reporter about the law in May.
Since the Idaho law went into effect in May, people have been left to try to make sense of the risks they may now face crossing state lines, attorney Wendy Heipt of the Seattle, Washington–based group Legal Voice told the Idaho Capital Sun in July. Heipt is one of the attorneys representing the groups challenging the “abortion trafficking law.” Though the law ostensibly targets only adults who help minors, as Heipt said, “it’s actually restricting minors, and if this is allowed to stand, they will move to adults.”
By disregarding a minor’s consent to abortion, and by further isolating victims of family violence, anti-abortion activists who support this law are giving those abusive families more power and control. Given the broader patriarchal, even authoritarian project some anti-abortion activists are building toward, it is not fair to think of any of this as some accident of the law.
As with their spiritual kin the Mann Act, enforcement of these laws can broaden over time; they could possibly go far beyond even the notion that it’s an innocent, pregnant girl who must be protected. “The unborn child is always taken against their will,” as Dickson told the Post.
Pliley is in Texas. She recalled driving on the same roads that now face these new bans. “All of these movements … all these types of fascism, it’s gender at the heart of it,” she said. “This kind of traditional patriarchal family, restoring it, whether that’s using the law, or the media. And I see this is as yet another attempt.”
This whole idea of “abortion trafficking,” it’s another way to control women and other pregnant people through their sexuality, their friendships, their families. And ultimately, as Pliley said, “through particularly their mobility.”