Tribes show little interest in offering abortions on reservations despite speculation they might

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Rachael Lorenzo began hearing the questions several weeks ago from strangers on Twitter and reporters seeking interviews: Since Native American tribes are sovereign nations, with their own laws, could they offer abortion services on Native land within states that could soon ban abortion?

And would they?

Speculation began last month, after a leaked draft of a US Supreme Court opinion suggested the court is about to overturn Roe vs. Wadethe 1973 decision that guaranteed the right to abortion throughout the country.

Lorenzo and other indigenous abortion rights advocates say the questions are coming primarily from non-native people.

Advocates said they had not heard of any tribe or indigenous organization advocating opening clinics on tribal land to offer abortion services. Planned Parenthood, the country’s leading abortion provider, told KHN that it is not exploring this option and such decisions should be left to indigenous peoples.

Any such plan would be fraught with legal, financial and political hurdles, advocates said. And they wondered why many people now asking about opening clinics on reservations didn’t seem interested in access to health care there before abortion rights were threatened across the country.

“All of a sudden, this issue that will affect white women as well, or affect white women more broadly, we are now seen as the potential savior,” Lorenzo said. “It shouldn’t be the responsibility of tribal nations to go further 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 on the Rise, an Albuquerque-based nonprofit organization that helps indigenous people in the United States and Canada pay for abortions.

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Lauren van Schilfgaarde, director of a legal clinic at UCLA School of Law and a member of Cochiti Pueblo, said people are looking for ways to ensure access to abortion if Roe vs. Wade falls but that the reserve solution is problematic. “I think people are throwing spaghetti at the wall and suddenly remember, ‘Oh yeah, tribal sovereignty.'”

“It’s kind of a weird argument to say, ‘Oh, can the tribes help?’ Like, no, the tribes are already in a worse position than you are,” she said.

some tribes lack of running water and funding, many indigenous peoples — once targeted for non-consensual sterilizations — still do not have access to high-quality health care.

Oklahoma is among the states making national headlines for approve restrictions on abortion. Its governor, Republican Kevin Stitt, is also rejecting a 2020 US Supreme Court decision which expanded tribal jurisdiction in the state. Stitt said during an appearance on Fox News in May that he thinks tribes might try to offer “abortion on demand.” They think you can be 1/1,000th member of the tribe and not have to follow state law. And that’s something we’re looking at.”

Carly Atchison, a spokeswoman for Stitt, told KHN that the Oklahoma attorney general’s office informed the governor that tribes could offer abortions on their land. She said she hadn’t seen any clear statement from the tribes about whether they could try it.

Spokesmen for the five largest Oklahoma tribes did not respond when KHN asked if any tribal member or elected representative had suggested offering abortions.

But the main chief of the Cherokee Nation, Chuck Hoskin Jr., responded to Stitt’s comment. “It is irresponsible to speculate on what tribes should do based on a leaked US Supreme Court draft decision.” Hoskin wrote in a statement released to the media.. “Just as irresponsible is the governor of Oklahoma and the media campaign disguised as him, which is actually intended to attack the tribes and our sovereignty.”

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Lorenzo and other indigenous advocates said many non-indigenous people now discussing the possible use of reservation land for abortions have been silent on related issues affecting Native Americans.

Many indigenous people living on reservations have lacked access to abortion services since 1976, when the so-called Hyde Amendment went into effect, Lorenzo said. Through the Hyde Amendment, Congress prohibited federal money from being used to pay for most abortions. And that means the federally funded Indian Health Service, the main health care provider on many reservations, can provide abortions only in limited circumstances.

Even if tribes wanted to allow abortion services on their land, the the legality of doing so would be murkyvan Schilfgaarde said. Criminal cases on Native American reservations are handled by tribal, state, or federal courts, depending on the situation.

Non-Indigenous people accused of committing crimes against other non-Indigenous people within reservation boundaries typically come under state jurisdiction, van Schilfgaarde said. So if a state bans abortion, state prosecutors could charge a non-Indian doctor who performed abortions on a reservation.

Legal questions could be further complicated under a new type of abortion restriction, first seen in Texas, van Schilfgaarde said. She hopes to see more of those laws, which are enforced in civil courts, rather than criminal ones. Determining whether tribal, state or federal courts have jurisdiction in civil cases is even more complicated than in criminal cases, van Schilfgaarde said.

Legal issues would not be the only barriers to providing abortion services on tribal land. Tribal councils are unlikely to approve such clinics, said Charon Asetoyer, executive director of the American Indian Women’s Health Education Resource Center on the Yankton Sioux reservation in South Dakota.

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Asetoyer said many tribal leaders’ views on abortion are determined by religion. “Churches have a pretty big influence,” she said. “Politically, I think it would be very challenging to see one of our leaders stand up for women’s rights. I really don’t think it’s going to happen.”

Other challenges could include funding and staffing such clinics, providing security for employees and patients, getting around licensing barriers, and paying for attorneys to defend against anticipated lawsuits.

Asetoyer also pointed out that some clinics, like the one in South Dakota, have had to bring in doctors from other states to perform abortions. Would those doctors be willing to travel to reservations, some of which are just a few hours’ drive from the nearest airport?

Although the current conversation about possible abortion services on Native lands is being raised primarily by non-Indigenous people, Native Americans have their own history of advocating for abortion and reproductive rights.

In 2006, on the Pine Ridge reservation in South Dakota, Cecilia Fire Thunder attempted to open a clinic that would have provided women’s health care services, including abortion. The plan of the clinic was truncated after the Oglala Sioux tribal council expelled Fire Thunder, the first female president of the tribe.

KHN (Kaiser Health News) is a national newsroom that produces detailed journalism on health issues. Along with Policy Analysis and Polling, KHN is one of the top three operating programs in KFF (Kaiser Family Foundation). KFF is an endowed nonprofit organization that provides information on health issues to the nation.

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