Tribal Nations and Abortion Access: A Path Forward

79 Pages Posted: 18 Aug 2022

See all articles by Lauren van Schilfgaarde

Lauren van Schilfgaarde

UCLA School of Law

Aila Hoss

Indiana University McKinney School of Law

Ann E. Tweedy

University of South Dakota School of Law

Sarah Deer

University of Kansas

Stacy Leeds

Arizona State University (ASU) - Sandra Day O’Connor College of Law

Date Written: August 15, 2022

Abstract

In the wake of Dobbs and its upending the constitutional right to abortion care, commentators have explored the possibility of an abortion “safe harbor” in Indian country. These narratives largely contemplate co-opting tribal sovereignty to provide safety from state criminal and civil liability for non-Native people seeking abortion care. It does not consider the complicated legal and practical considerations that would face Tribes pursuing this strategy, nor the risk to providers and patients. Moreover, Indigenous people are already less likely to receive abortion care. Native reproductive care has long been the target of assimilationist and even genocidal policies, while also being greatly underfunded and neglected, resulting in a population with devastating rates of violence and maternal mortality, and with extremely limited access to abortion care.

However, despite numerous legal hurdles, and a historical context steeped in restricted reproductive health, Tribes, as sovereign nations, may be a position to fill a part of the enormous health care gap to serve their citizens and communities. Tribes have numerous reasons to be unsatisfied with the prospect of delegating their regulatory authority regarding reproductive care to the states. Native authority generally is under increasing threat from state encroachment and federal disestablishment, including in the most recent U.S. Supreme Court holding in Indian law, Oklahoma v. Castro-Huerta. But more fundamentally, Tribes have sovereign obligations to their Indigenous citizenry that include robustly asserting Native reproductive well-being as a human right, and zealously defending that right.

This article outlines the legal realities of providing abortion care in Indian country, particularly in the context of avoiding state prohibitions. Abortion care is a fundamental human right of Indigenous people. The ability to safely end a pregnancy is consistent with Tribal conceptions of autonomy, privacy, and individual self-determination.

Suggested Citation

van Schilfgaarde, Lauren and Hoss, Aila and Tweedy, Ann E. and Deer, Sarah and Leeds, Stacy, Tribal Nations and Abortion Access: A Path Forward (August 15, 2022). Harvard Journal of Law and Gender, Forthcoming, Available at SSRN: https://ssrn.com/abstract=4190492 or http://dx.doi.org/10.2139/ssrn.4190492

Aila Hoss

Indiana University McKinney School of Law ( email )

530 W New York St
Indianapolis, IN Na 46202
United States

Ann E. Tweedy

University of South Dakota School of Law ( email )

414 E. Clark Street
Vermillion, SD SD 57069
United States
57069 (Fax)

HOME PAGE: http://www.usd.edu/faculty-and-staff/Ann-Tweedy

Sarah Deer

University of Kansas ( email )

Blake Hall
1541 Lilac Lane, Room 322
Lawrence, KS 66045
United States
785-864-9713 (Phone)

Stacy Leeds

Arizona State University (ASU) - Sandra Day O’Connor College of Law ( email )

Box 877906
Phoenix, AZ 85287-7906
United States

HOME PAGE: http://StacyLeeds.com

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