Rachael Lorenzo began hearing the questions several weeks ago from strangers on Twitter and journalists seeking interviews: Since Native American tribes are sovereign nations, with their own laws, could they offer abortion on indigenous lands in states that may soon ban abortion?
And would they?
The speculation began last month, after a draft of a U.S. Supreme Court opinion suggested the court was set to overturn Roe v. Wade, the 1973 ruling that guaranteed the right to abortion nationwide.
Lorenzo and other Indigenous abortion rights advocates say the questions come mostly from non-Indigenous people.
Advocates said they have not heard of any tribes or indigenous organizations advocating for the opening of clinics on tribal lands to provide abortion services. Planned Parenthood, the nation’s leading provider of abortions, told KHN it is not exploring this option and such decisions should be left to Indigenous peoples.
Such a plan would be fraught with legal, financial and political hurdles, proponents said. And they wondered why many people now calling for clinics to be opened on reservations didn’t seem interested in accessing health care there before abortion rights were threatened across the country.
“All of a sudden this issue that’s going to affect white women as well — or more broadly white women — now we’re seen as the potential savior,” Lorenzo said. “It should not be up to tribal nations to go beyond that when so many tribal nations already have very limited resources.”
Lorenzo – who is from Mescalero Apache, Laguna Pueblo, and Xicana heritage — is the director of Indigenous Women Rising, an Albuquerque-based nonprofit that helps Indigenous people in the United States and Canada afford abortions.
Lauren van Schilfgaarde, director of a legal clinic at UCLA Law School and a member of the Cochiti Pueblo, said people are looking for ways to ensure access to abortion if Roe v. Wade was falling, but that the reservation solution was problematic. “I think people throw spaghetti at the wall and suddenly remember, ‘Oh, yeah, tribal sovereignty.'”
“It’s kind of a weird argument to say, ‘Oh, can tribes help?’ Like, no, the tribes are already in a worse position than you are,” she said.
Oklahoma is among the states making national headlines for pass restrictions on abortion. Its governor, Republican Kevin Stitt, is also pushing back a 2020 United States Supreme Court decision which expanded tribal jurisdiction in the state. Stitt said during an appearance on Fox News in May that he thinks the tribes might try to offer “abortion on demand”. They think you can be 1/1000th member of the tribe and not have to follow state law. And so that’s something we’re watching.
Carly Atchison, Stitt’s spokeswoman, told KHN that the Oklahoma attorney general’s office informed the governor that tribes may be able to offer abortions on their land. She said she hadn’t seen any clear statements from the tribes about whether they could try.
Spokespersons for Oklahoma’s five largest tribes did not respond when KHN asked if any tribal members or elected officials had suggested offering abortions.
But Cherokee Nation Senior Chief Chuck Hoskin Jr. responded to Stitt’s comment. “Speculating what the tribes should do based on a leaked draft decision from the United States Supreme Court is irresponsible,” Hoskin wrote in a statement released to the media. “Equally irresponsible is the governor of Oklahoma and his disguised media campaign, which is really aimed at attacking the tribes and our sovereignty.”
Lorenzo and other Native advocates said many non-Native people now discussing the possible use of reservation land for abortions have remained silent on related issues that affect Native Americans.
Many Aboriginal people living on reserves have no access to abortion services since 1976, when the so-called Hyde Amendment went into effect, Lorenzo said. Through the Hyde Amendment, Congress banned federal money from being used to pay for most abortions. And that means the federally funded Indian Health Service — the main healthcare provider on many reservations — can only offer abortions in limited circumstances.
Even if the tribes wanted to allow abortion services on their lands, the the legality of doing so would be cloudy, said van Schilfgaarde. Criminal cases on Native American reservations are handled in tribal, state, or federal courts, depending on the situation.
Non-Indigenous people accused of committing crimes against other non-Indigenous people within the boundaries of a reservation generally fall under state jurisdiction, van Schilfgaarde said. So if a state bans abortion, state prosecutors might be able to charge a non-Native doctor who performed abortions on a reservation.
The legal issues could become even more complicated under a new kind of abortion restriction, first seen in Texas, said van Schilfgaarde. She expects to see more of these laws, which are enforced in civil rather than criminal courts. Determining whether tribal, state or federal courts have jurisdiction in civil cases is even trickier than in criminal cases, van Schilfgaarde said.
Legal problems would not be the only obstacles to the provision of abortion services on tribal lands. Tribal councils are unlikely to approve such clinics, said Charon Asetoyer, executive director of the Native American Women’s Health Education Resource Center on the Yankton Sioux Reservation in South Dakota.
Asetoyer said many tribal leaders’ views on abortion are shaped by religion. “Churches have a pretty big sway,” she said. “Politically, I think it would be very difficult to see one of our directorates defending women’s rights. I really don’t think that’s going to happen. »
Other challenges could include funding and staffing these clinics, employee and patient safety, navigating licensing hurdles, and paying attorneys to defend against anticipated lawsuits.
Asetoyer also noted that some clinics, like the one in South Dakota, have had to fly in doctors from other states to perform abortions. Would these doctors be willing to travel to reservations, some of which are a few hours drive from the nearest airport?
Although the current conversation about potential abortion services on Native lands is mostly raised by non-Natives, Native Americans have their own history when it comes to abortion and reproductive rights advocacy.
In 2006, on the Pine Ridge Reservation in South Dakota, Cecilia Fire Thunder attempted to open a clinic that would have provided health care services to women, including abortion. The plan of the clinic has been boosted after the Oglala Sioux Tribal Council ousted Fire Thunder, the first female president of the tribe.
KHN (Kaiser Health News) is a national newsroom that produces in-depth journalism on health issues. Along with policy analysis and polling, KHN is one of the three main operating programs of KFF (Kaiser Family Foundation). KFF is an endowed non-profit organization providing information on health issues to the nation.