Native Americans seeking abortions must negotiate a complex maze of legal, financial and jurisdictional barriers to receive care
Editor's note: This story contains graphic descriptions of sexual violence.
After the landmark Supreme Court decision in Dobbs v. Missouri overturning federal protections on abortion rights, primarily non-Native groups quickly advocated setting up abortion havens on tribal lands — a misguided notion that is both legally and logistically unfeasible and largely unsupported by Native people themselves.
Already, Native Americans seeking abortion care face a complicated landscape full of barriers — financial, legal and, increasingly, due to the recent Supreme Court ruling in the Castro-Huerta v. Oklahoma case, jurisdictional.
As soon as the Supreme Court issued its decision overturning the nearly 50-year-old precedent protecting the constitutional right to seek an abortion, conservative states across the country moved to restrict abortion access. The majority of states are poised to restrict or outright ban access to abortions, pending legal challenges in many of those states.
Current landscape
The majority of health care in Indian Country is funded federally. Indian Health Service, or IHS, which offers comprehensive health insurance to approximately 2.6 million Native American people from 574 federally-recognized tribes across the United States, is the most prominent service.
Hundreds of facilities and clinics both on and off tribal lands constitute the network of Native American health care providers, all of which are primarily funded by the federal government.
However, due to the Hyde Amendment, which prevents using federal dollars to fund abortion care except in the limited circumstances of medical necessity, incest or rape, federally funded facilities are largely prevented from performing abortions or even referring patients for abortions.
In Oregon, abortion is codified in state law, as well as protected by the Oregon Constitution. A 2017 law called the Reproductive Health Equity Act, designed to improve access to reproductive health care in the state, vowed to focus on rural communities, communities of color and low-income communities — though nearly five years later, there remains only one clinic offering abortions east of the Cascades.
Existing difficulties
On July 1, the Native Nations Law and Policy Center at UCLA School of Law held a panel discussing the impact of the Supreme Court’s decision in Dobbs.
Aila Hoss, associate professor of law at Indiana University’s Robert H. McKinney School of Law spoke on the panel. Hoss, who studies the intersections of health law and federal Indian law, said the Hyde Amendment poses a barrier to abortion access with or without state laws restricting abortion access.
“We have had this effectively very broad ban on abortion care within the federal Indian health system and that has been, and continues to exist, irregardless of what states are doing in terms of their restrictive abortion laws,” Hoss said. “So, already for so long, we have had this disparate impact and ginormous reproductive health care deserts in Indian Country due to the Hyde Amendment and that doesn't even get to issues … like health care deserts for Indigenous people living in rural areas.”
Eastern Oregon, home to several tribes including the Confederated Tribes of Warm Springs Reservation and the Confederated Tribes of the Umatilla Indian Reservation, is an abortion desert. As previously reported by Street Roots, people seeking abortions in Eastern Oregon often travelled out of state to receive reproductive health care, an option that will be limited after the neighboring state of Idaho outlaws abortion.
Oregon, Washington and Idaho make up the Portland division of IHS services, though there are facilities in all three states. IHS says it provides health care for an estimated 150,000 Native American/Alaska Native people in the Portland branch. There are 24 total IHS facilities in Oregon, including eight in the Portland area, where the majority of Oregon’s Native American/Alaska Native population resides.
Except in the limited circumstances detailed in the Hyde Amendment, people seeking abortions through health care in Indian Country would have to seek care options outside of tribal clinics and likely pay out of pocket for their abortion. Even with the provisions of the Hyde Amendment allowing funding of abortions, it is exceptionally rare for IHS funding to cover an abortion.
“We have had this effectively very broad ban on abortion care within the federal Indian health system and that has been, and continues to exist, irregardless of what states are doing in terms of their restrictive abortion laws."
— Aila Hoss, Associate professor of law at Indiana University
Abigail Echo-Hawk (Pawnee), executive vice-president of the Seattle Indian Health Board and its research arm, the Urban Indian Health Institute, or UIHI, said during the UCLA panel that her organization sees patients daily who are seeking abortion services but UIHI is unable to provide them, as a result of the Hyde Amendment. The lack of access forces UIHI to connect the patients with other organizations who can provide abortions.
Echo-Hawk said UIHI analyzed 33 IHS health care facilities across the country and found that in a period of 20 years, IHS funded less than 10 abortions for the 33 facilities.
“So we know that the Indian Health Service was unable to provide the resources needed to our relatives who were seeking our legal right to abortion care — not just our legal right, our traditional right as Indigenous peoples who have always held the autonomy to make choices of our own bodies,” Echo-Hawk told the panel.
In her advocacy efforts, Echo-Hawk encourages resilience amid the recent Supreme Court decisions undermining both bodily and tribal sovereignty.
“There are misconceptions about abortions that have been perpetually enforced by religious radicals, but people need to understand that reproductive rights and systemic violence are inextricably linked, and this decision means we will likely see violence against Native women increase, which our community already experiences at some of the highest rates,” Echo-Hawk told Street Roots. “When we factor in the statistics — and the federal government’s history of creating barriers for Native communities to access necessary services — it's clear that the Supreme Court considers Native people irrelevant.”
Even before the reversal of Roe v. Wade, states across the country restricted abortion access. Rachael Lorenzo (Mescalero Apache/Laguna Pueblo/Xicana), co-founder of reproductive rights advocacy group and abortion fund Indigenous Women Rising, also sat on the panel. They said their group has already seen the impact of tightening abortion restrictions.
“With abortion funding, the average amount of funding that we spend per person, it moved from about $700 and now it's around $1,300 because people are having to (travel),” Lorenzo said. “Now that states are closing down their abortion clinics — yesterday we got word that Planned Parenthood of Montana is shutting down their clinics — so that leaves one clinic left in Montana, and folks in northern New Mexico are having to go up to Colorado because otherwise, they would have to wait two or three weeks to get in to Albuquerque, and folks from Texas and Oklahoma are coming to Albuquerque.
“And so that pushes them into a new trimester, and makes the stay longer, the procedure becomes very different and, of course, the price goes up.”
Although abortion in Oregon is legal at any point during a pregnancy, the difficulty of finding a provider willing to perform a later abortion for any reason increases with time.
The clinic in Bend offers abortion up to 14 weeks of gestation, and although 92.7% of all abortions in the United States occur within the first 14 weeks of gestation, and the vast majority of abortions occurring after that are performed due to fetal abnormalities or risk to the pregnant patient’s health, that limit will force patients seeking later abortions to find care even further afield.
Only a subset of abortion providers perform later abortions, which typically cost thousands of dollars and can require treatment over multiple days.
Access to accurate information regarding abortion and abortion funds improved in recent years, according to Lorenzo, but accessing that information is still difficult for some Native Americans, like those who may lack reliable internet access.
“Our people are not dumb by any means, but our people are also not policy experts, they're not legal minds, and so on purpose, these policies are made difficult to understand to discourage us from getting the care that we are entitled to,” Lorenzo said.
Abortion clinics on tribal lands? Not so fast.
The logic behind proposing the federal government construct abortion clinics on tribal lands is that as federal lands, state laws prohibiting abortion would not apply — but according to legal experts, the argument doesn’t hold water, and the suggestion is highly unpopular amongst many Native people.
A patchwork of laws governs both civil and criminal jurisdiction on tribal lands, creating a jurisdictional tangle surrounding abortion access in Indian Country.
Public Law 280, the Major Crimes Act and several landmark Supreme Court rulings — Oliphant v. Suquamish, McGirt v. Oklahoma and as of Jun. 29, Castro-Huerta v. Oklahoma — are just several of many impactful laws and rulings making up the complex legal framework governing jurisdiction in Indian Country.
When it comes to crimes involving Native Americans, many factors are at play in determining which body — tribal, federal or state — has jurisdiction, including whether or not the matter is civil or criminal, the legal Indian status of both the victim and the perpetrator and the location the crime or incident took place.
As abortion restrictions are put in place across the country, this paints a complex legal picture regarding abortion access on tribal land.
“Legally, this is particularly really complicated because of the fact that we've got abortion restrictions both criminally and civilly,” Hoss said during the panel.
Historically, states did not have jurisdiction on tribal lands without express congressional approval, such as in the case of Public Law 280, which grants states criminal jurisdiction on tribal land in Oregon, California, Wisconsin, Alaska, Minnesota and Nebraska.
The 1978 landmark decision in Oliphant v. Suquamish handed total criminal jurisdiction over non-Indians to the federal government except in states where PL280 applies, a ruling that still reverberates today. The lack of criminal jurisdiction for tribal governments has historically hurt Native women. Congress has only partially restored criminal jurisdiction over non-Natives, in very limited circumstances, through the Violence Against Women Act in 2013 and 2022.
The Supreme Court decision in the Castro-Huerta v. Oklahoma case throws out hundreds of years of precedent largely excluding state governments from criminal jurisdiction on tribal lands. The 5-4 decision in Castro-Huerta grants states legal jurisdiction over crimes against Natives committed on tribal lands by a non-Native perpetrator until Congress passes legislation stating otherwise.
The ruling outraged Native Americans across Turtle Island, an Indigenous name for North America, who see the decision as a direct assault on tribal sovereignty and the ability of tribes to protect their citizens.
Indeed, the decision disregards countless treaties affirming tribal sovereignty as well as legal precedent dating as far back as 1837, when the landmark Worcester v. Georgia Supreme Court case was decided, which found Georgia lacked the authority to enforce state laws within the borders of the Cherokee Nation.
“Where the Court once stood firm, today it wilts,” Justice Neil Gorsuch wrote in his blistering dissent.
The decision also thrusts another problem into the spotlight: the issue of licensing for abortion providers in anti-abortion states. Some states that restrict abortion access, like Oklahoma, will seek to discipline abortion providers through their licensing board and are even promising criminal charges for those who perform abortions. Hoss said past rulings show courts are unpredictable with their decisions regarding subjects like state licensing codes. When it comes to criminal liability, there are even further complexities.
“Just like we saw with Castro-Huerta, is that when (tribal sovereignty) gets litigated, and when it goes to the Supreme Court, we know what the court is going to decide — -they're going to further limit tribal jurisdiction and create more space,” Hoss said. “So there's also frankly a real political risk and legal risk, not for just the tribes or individuals wanting to provide abortion care, but for all of Indian Country because we have such a hostile, hostile Supreme Court.”
For abortion access on tribal lands, the implications of the Castro-Huerta ruling all but extinguish the notion that the current Supreme Court would rule in favor of tribal sovereignty being used to circumvent state-level abortion restrictions.
The notion that Native American reservations could be used as a sort-of legal escape hatch was not welcomed by many Native people. Those in opposition feel it is insulting to suggest a marginalized group already facing a host of difficulties obtaining reproductive health care themselves should endeavor to offer abortions to non-Natives.
According to Lorenzo, calls for abortion clinics on tribal lands fail to take into account the conservative political landscape in which many reservations are located. This pattern holds true in Oregon, where tribal lands are located outside of urban areas and surrounded by conservative counties.
“It makes me concerned that folks who are making suggestions about clinics on reservations have no understanding of some of those nuanced things,” Lorenzo said. “There's that assumption that we have all of the resources that people might find in an urban setting or in a town setting, and we don't, a lot of tribal nations just don't.”
Echo-Hawk expressed similar sentiments that those suggesting the construction of abortion clinics on tribal lands are ignorant to the struggles of abortion access in Indian Country.
“Right now, we are seeing the evidence of white supremacy embedded in the pro-choice movement, that truthfully has never really cared about those most affected by and most marginalized by 500 years of settler-colonialism and enslavement that hasn't ended but is continuing right now,” Echo-Hawk said. “So when it was brought forward and people were like ‘Oh well we're just going to go to the reservations, we'll put up clinics there.’ It's like, do you realize you are saying you want to put an entire tribe's economy and health system at risk?”
Post-Roe concerns
As more states begin to restrict abortion access, those seeking the procedure must surmount growing barriers and travel ever-farther to receive abortion care, increasing pressure on existing abortion providers, who were already feeling the effects of tightening restrictions on access, as Street Roots reported is already happening in Oregon.
Echo-Hawk said in states with large Native populations where access to abortion is still protected, providers are anticipating up to a 400% increase in demand for the procedure.
“I worked with a community that had to fly a young person who was experiencing a pregnancy that was risking their life and they needed a second-trimester abortion,” Echo-Hawk said. “They had to fly them from one state to the other. They fundraised. They couldn't use tribal dollars. They couldn't use their IHS dollars. They had to fundraise — and kind of an underground fundraiser — to get the resources to transport this young person to save her life and get her to a place where the second-trimester abortion was available.
“These are the extreme circumstances in which our relatives are operating under.”
A 2021 study in The Journal of Women’s Health regarding maternal mortality among Native American women found they face an elevated risk for maternal death in the United States, at a rate of 29.7 maternal deaths per 100,000 live births compared to 16.7 for the general population. The true scope of maternal deaths among Native Americans is likely greater than those figures due to racial mischaracterization on death certificates.
“We are now going to have individuals who are going to have to carry forward pregnancies they never intended, that they do not want and it is absolutely going to increase our rates of maternal and infant mortality as a direct result of (Dobbs),” Echo-Hawk said. “I cannot just let it go on in silence.”
In addition to the risk of complications from a pregnancy, pregnant people are also at a higher risk of external dangers. The leading cause of maternal death in the United States is homicide, according to a study by the American College of Obstetricians and Gynecologists. This risk could be heightened for Native American women, but the issue of racial mischaracterization of Native women poses a barrier to collecting comprehensive data.
Native American women face disproportionately high rates of sexual assault and intimate partner violence, which includes reproductive coercion. Reproductive coercion is an abuse tactic in which an abuser seeks to maintain power and control in a relationship over a victim by forcible impregnation, controlling pregnancy outcomes, controlling contraception or coercing a victim into having unprotected sex, according to the American College of Obstetricians and Gynecologists.
“We are going to see this absolutely result in death, and I know folks don't necessarily want to hear that, and when the Supreme Court issued that ruling, they definitely didn't make any considerations like that,” Echo-Hawk said. “But they're not the ones on the ground who are sitting with a woman who is talking about being impregnated 12 times just so that their abuser can maintain control of them, and (how a victim needs) to access abortion services just to make it through that next day.”
Looking ahead
Despite the setbacks to abortion access the reversal of Roe v. Wade poses, Native pro-choice activists are determined to ensure Native people across the country have access to abortion care, and legal experts say there are potential solutions to some of the barriers posed by recent Supreme Court decisions.
Mary Katherine Nagle (Cherokee), a lawyer, Indigenous advocate and playwright, is calling supporters of tribal sovereignty to action.
“The Supreme Court is an institution made up of humans,” Nagle said during the panel. “Therefore, we understand it makes mistakes, and you know that our work is not done. It is not over simply because the Supreme Court has issued decisions that harm us or undermine our rights. We can change this, and we will change this, and we have before. We've had many, many successes in our fights for our rights as Native people, and for our tribal nations, and for our communities and for our families.”
Nagle said it is time for supporters of Native American tribal sovereignty to press Congress to pass a “Castro-Huerta fix” to negate the Supreme Court’s recent verdict.
“It's just sad that we have to go back to Congress again to fix yet another mistake created by the Supreme Court,” Nagle said. “Congress has twice acted to partially restore that jurisdiction in VAWA 2013 and in VAWA 2022. That has taken a lot of time, effort, sweat, blood, tears from our Native people to fight for that restoration of tribal sovereignty and jurisdiction that the Supreme Court took away.
“We shouldn't have to fight for it, but we will and we will ultimately prevail.”
Echo-Hawk said the Dobbs decision will disproportionately impact Native communities and other communities of color.
“While there is a lot of work to be done to fix the harm that has happened today, we will keep fighting for our people and the right to sovereignty over our bodies,” Echo-Hawk said.
Editor's note: A previous version of this story erroneously included a monetary amount in a sentence describing the Reproductive Health Equity Act. The monetary amount in the description was sourced from the unrelated Reproductive Health Equity Fund. Street Roots regrets this error.
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