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March 2, 2024

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Idaho girl went out of state for an abortion. Why her boyfriend faces a criminal charge

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BOISE, Idaho — On May 18, a pregnant 15-year-old Idaho girl joined her 18-year-old boyfriend and his mother in a rental car for an eight-and-a-half hour drive west to Bend, Oregon. According to court documents, the girl had an abortion at a Bend Planned Parenthood clinic before returning home to Pocatello a few days later.

The trip soon became the subject of a monthslong police investigation, culminating in the arrest of the boyfriend, Kadyn Swainston, and his mother, Rachael Swainston, in late October on kidnapping charges.

Five days after the Swainstons were arrested, a headline from author Jessica Valenti’s “Abortion, Every Day” newsletter declared abortion access advocates’ fears about a controversial Idaho law had come to pass: The state had its first “abortion trafficking” arrest.

Since then, prosecutors have denied any ties to the law, which earlier this month was put on pause by a U.S. District court. But the case has raised questions about whether existing Idaho laws could be used to enforce contested abortion restrictions.

Kidnapping charges not tied to trafficking law, officials say

Idaho legislators introduced the “abortion trafficking” legislation in February. The law added a new section to Idaho code that made it illegal for an adult to help a minor procure an abortion “with the intent to conceal” the abortion from the minor’s parents or guardian. Gov. Brad Little signed the law on April 6, and an emergency enactment provision meant it went into effect in early May — about two weeks before the Swainstons traveled to Bend with Kadyn’s underage girlfriend.

The law had abortion access advocates on high alert, and it was challenged in court by an Idaho attorney, the Northwest Abortion Access Fund and Indigenous Idaho Alliance in July. By then, an investigation into the Swainstons was already underway.

In June, the underage girl’s mother filed a police report, telling officials her daughter had been sexually assaulted by Kadyn Swainston, a probable cause affidavit showed. The girl alleged that Rachael Swainston dissuaded her from telling her parents about her pregnancy. The minor told police she was initially happy about the pregnancy, while Kadyn wasn’t, the document said.

The affidavit said the girl “refused” to call Planned Parenthood to schedule the abortion appointment. Instead, Rachael Swainston made arrangements with the clinic. The girl’s parents told law enforcement they were never asked about transporting their daughter across state lines or giving Rachael Swainston consent to make medical decisions for the teen.

The Swainstons were charged with second-degree kidnapping, according to court records, which involves taking a child under 16 years old and concealing the child from their parent or guardian.

In a statement, the Bannock County Prosecutor’s Office told the Idaho Statesman the girl wanted to contact her parents, and that the Swainstons prevented the girl from calling them before she left the state.

“The kidnapping charges against the Swainstons result from their coercion of the child” and taking her out of state without letting her communicate with her parents,” the statement read. “The child’s abortion is not an element of the charged offense, and the Idaho abortion trafficking statute is not implicated in this case.”

Charges reflect ‘post-Roe America,’ attorney says

Valenti claimed in her blog post that the Bannock County prosecutor used “the exact language of the trafficking law” in the kidnapping charges against the Swainstons.

She wrote that the charges detailed the Swainstons’ “‘intent to keep or conceal (the minor) from her custodial parent … by transporting the child out of the state for the purpose of obtaining an abortion.”

But a criminal complaint reviewed by the Statesman did not appear to use the same terms that appear in the abortion trafficking statute. Rather, the complaint alleged the Swainstons led or enticed the girl out of state — language that appears in the Idaho second-degree kidnapping definition.

The abortion statute includes language on “intent to conceal an abortion” from a parent or guardian. But Idaho’s second-degree kidnapping definition also includes phrasing about keeping or concealing a child from a custodial parent.

The criminal complaint noted that the minor was taken for the purposes of having an abortion. In the statement provided to the Statesman, Bannock County Deputy Prosecutor Erin Tognetti said it’s typical to provide “a brief description of where they took the minor to provide adequate notice to the defendant.”

Despite prosecutors’ assurances that the trafficking law played no role in the arrests, abortion rights supporters are keeping a close eye on the case.

“I think that case and others like it is just an example of the reality that post-Roe America is forcing everyone to evaluate,” said Kelly O’Neill, an Idaho attorney for Legal Voice, in an interview with the Statesman. Legal Voice, a nonprofit advocacy group for gender equity is part of a cohort that sued the state in July over the abortion travel law.

Since the U.S. Supreme Court reversed federal abortion protections in June 2022 with the repeal of Roe v. Wade, Idaho has instated some of the most restrictive abortion laws in the country. They include a complete ban on abortions except when the life of the pregnant person is at risk or in cases of rape or incest that have been reported to police.

The challenge to the trafficking statute is one of four ongoing lawsuits challenging Idaho abortion laws. Another seeks clarity on when a pregnant person’s life is in danger, a third challenges the constitutionality of a 2021 law preventing public employees from promoting abortion and the final lawsuit concerns protections for emergency physicians who perform abortions to stabilize patients.

Currently no one can be charged under the abortion trafficking statute. A federal judge earlier this month temporarily blocked the law until a court decides whether the law is constitutional.

Still, O’Neill said she believes it’s possible for prosecutors to leverage existing laws to try to further discourage abortion.

“Prosecutors charge things in different ways depending on the tools they have available,” O’Neill said. “Anything is possible at this point. It’s a brand new world, and unfortunately those (abortion) protections we had for 50 years are gone.”

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