Since “Dobbs” Ruling, Native People Face a Web of Obstacles to Reproductive Care

Abortion access was already a near impossibility for people receiving services through the Indian Health Service (IHS), even before the Supreme Court overturned Roe v. Wade in Dobbs v. Jackson Women’s Health Organization.

The ruling is likely to increase already high rates of pregnancy-related mortality for Native pregnancy-capable people (NPCP) in the U.S., creating “the perfect environment for Native women to die,” Abigail Echo-Hawk, citizen of Pawnee Nation of Oklahoma and executive vice president of the Seattle Indian Health Board, told Truthout.

Of the 14 states with total abortion bans, nine of them have a combined total of 75 federally recognized tribes. This doesn’t include the many state-recognized tribes.

Meanwhile, the majority of tribal governments appear reluctant to actively fight for abortion access for tribal members, and some tribes don’t appear to offer abortion even under the legally allowed instances.

External and Internal Constraints on Tribal Governments

Abortion and reproductive care aren’t simple for NPCP due to a labyrinth of colonizer law and policy from federal to municipal governments, tribal governments’ sexism, lack of regional health care infrastructure and access, and a primarily white and privileged abortion rights movement that has largely ignored Native people.

U.S. and state governments have for decades tied tribal nations’ hands such that, even before Dobbs, many tribal members were left with few to no resources for abortion and reproductive health care. In addition to these external constraints, the elected leaders of many tribal nations seem reluctant or uninterested in tackling the issue of abortion access, even though they can, and do, advocate on behalf of their members to outside governments on a number of issues. The majority of these tribes are led by cisgender men.

In conducting research for this article, I attempted to contact via email 44 of the 75 total federally recognized tribes in the states with total abortion bans. I only received responses of any kind from six tribes, and interviews or statements from three tribes (Cherokee Nation, Choctaw Nation and Oneida Nation of Wisconsin). Of the 75 federally recognized tribes, only 15 were led by women* at the time of contact. In some instances, the vast majority or entirety of elected tribal leadership are cisgender men. While traditionally some tribes may have cisgender men as their outward-facing representatives, these men still have a responsibility to listen and advocate for the needs of all of their tribal members, including NPCP.

Dobbs’s majority opinion stated that abortion isn’t “deeply rooted in this Nation’s history and tradition,” but tribal nations are significantly older than the so-called U.S. and have different traditions. “Indigenous communities within the United States have always exercised the option of choice,” said Echo-Hawk. “It was the role of birthing people to make the decision of when was the right time to be birthing.”

Rachael Lorenzo, a descendant of Mescalero Apache, is co-founder and executive director of Indigenous Women Rising (IWR), an Indigenous-led reproductive justice organization and abortion fund based in Albuquerque, New Mexico. Lorenzo told Truthout that, “Our environment provided everything we needed to be well, and that included abortion and arthritis and different health conditions that may come up in our lives.… That notion that abortion isn’t part of the nation’s tradition or Indigenous people’s tradition denies the humanity of our people.”

Pregnancy-Related Mortality

Sixty percent of pregnancy-related deaths in the U.S. are preventable. The incidence of severe maternal morbidity and mortality for Native pregnant people is twice as great as that of white pregnant people, with rural Native people suffering the worst. Many of the states with the harshest abortion restrictions have some of the worst access to prenatal care and supports, and the highest rates of pregnancy-related deaths. A recent study found that an abortion ban could increase maternal mortality by 24 percent. However, the study didn’t include American Indians and Alaska Natives (AI/AN).

Oklahoma, home to 38 federally recognized tribes, has one of the highest maternal mortality rates in the U.S. A 2021 maternal morbidity report for the state found that the non-Hispanic American Indian rate for 2017-2019 showed a 36.1 percent increase in deaths from the recorded maternal mortality in 2016-2018. The rates for maternal mortality for all other races, however, stayed the same, decreased or only slightly increased. The report offered no reason for this sharp increase for Native people.

Further compounding this issue, many NPCP don’t receive postpartum care, have higher rates of underlying health conditions that increase risks of complications and death, and a “history of poor cultural representation in medicine,” according to Tyler Freeman, director of Family Practice and Specialty Services at the Oklahoma City Indian Clinic. “Legislation in the state that makes women feel less than or prevented from making choices about their health with autonomy further weakens our ability to practice medicine and make positive changes for women’s health.”

Nationwide, one-third of American Indians and Alaska Natives are on Medicaid, which presents additional barriers to accessing a wide range of reproductive care, some of which are due to the Hyde Amendment and the lack of providers that accept Medicaid.

Restrictions Under the Hyde Amendment

Under the Hyde Amendment, federal funds can’t be used to pay for abortion unless it is to save the life of the pregnant person due to a life-threatening physical health issue, or in cases of rape or incest. However, a 1996 IHS memo placed extra burdens on patients, requiring that a physician has “certified in writing” the threat to the person’s life, or in the case of abuse, that they file a police report within 60 days of the assault. It also states that “because the majority of medical procedures during pregnancy, including abortions, are provided to IHS beneficiaries by non-IHS providers, Federal funds may be authorized to pay such providers to perform medical procedures, including abortions.” This was also included in IHS’s updated 2022 memo.

The updated memo was released after the Dobbs decision. However, it doesn’t mention the 1996 memo. Echo-Hawk said it was “lip service and tokenizing.” The 2022 memo no longer requires a police report, but the physician must certify the abuse in the medical record. It also states that IHS can provide “accommodations to providers who maintain a sincerely held religious objection to abortion.” Given that IHS itself admits in both memos that most care related to pregnancy is outsourced to non-Native facilities, these accommodations could further limit abortion and other reproductive health care access and risk Native lives.

The exact number of abortions IHS has provided or funded is unknown, as is a full list of locations that offer abortion. According to Echo-Hawk, “It’s sorta kept under wraps.” Abortion is often treated as a partisan issue, but the current Democratic administration is leaving NPCP behind. Echo-Hawk elaborated that after the Dobbs ruling, the Biden administration wanted federal agencies to publicly state they still upheld abortion access, “but what they missed completely is that very few IHS facilities, and I can’t even say if there are any now, actually provide this service.” She said that the Seattle Indian Health Board doesn’t offer abortion, including medical abortion, because of these restrictions.

IHS didn’t respond to several requests for comment.

It appears some tribes may not even understand their legal right to offer abortion under the Hyde Amendment. Choctaw Nation responded to Truthout’s interview request by sending a press release dated May 17, 2022, which states: “The Choctaw Nation of Oklahoma does not provide abortion services. Therefore, our activities are not affected by recently signed state legislation or by expected changes to how the U.S. Constitution is interpreted.” It also states that “due to being federally-funded, we are prohibited from performing abortion services.” However, this is incorrect under current federal law and IHS policy. Choctaw Nation gave no further follow up.

Given the vast barriers for Native people to access reproductive health care, including abortion, it stands to reason that the legal right to abortion is even more important for NPCP so they have options outside of IHS.

IWR formed its abortion fund in 2018. The fund is currently open to all Indigenous people in the U.S. and Canada. “There was no space for Indigenous people in the reproductive space” in both New Mexico and nationally, Lorenzo told Truthout. IWR had no more than 50 callers in its first year, but its clientele “skyrocketed” amid state abortion bans, rising costs, and a lack of clinics and providers.

In the wake of Texas’s draconian anti-abortion law, IWR helped fund abortion-related costs for 600 clients between September 2021 and April 2022. The increase grew rapidly beyond capacity. On June 1, 2022, IWR ran out of funds for the month and had to close applications for the fund until July 1, 2022. In the past, IWR would help fund non-Native people, but as demand increased, it switched to an Indigenous-only policy requiring proof of tribal and community ties.

Lorenzo said that since Dobbs, IWR has seen an increase in requests for “practical support” costs to access abortion, such as airfare, hotel, gas and child care. Between May 2022 and May 2023, IWR funded 723 clients. The organization reported some of the costs — travel, preliminary visits and the procedure itself — have even doubled compared to prices pre-Dobbs. IWR’s budget has doubled since June 2022, however, due to an “outpouring of support and donations,” Lorenzo said.

But even if a NPCP receives IWR assistance, they may still encounter problems accessing care. IWR can only fund abortion where the clinics will accept their funds, and under IWR’s policies, the person must have an appointment scheduled before they can access the funds. According to Lorenzo, many clinics require the payment before the appointment can even be scheduled, and some clinics refuse to work with IWR. Lorenzo stressed the importance of IWR building relationships and trust with clinics and the reproductive justice community for the fund to be effective for clients.

Tribal Governments’ Response to Dobbs

Soon after the Dobbs ruling many white, pro-choice women began advocating for abortion clinics on reservations in the hopes of circumventing state abortion bans. Such demands might have had a “boomerang effect” which led to tribes either saying they don’t offer abortion or simply being silent, according to Kim Pate (Eastern Band Cherokee and Mississippi Choctaw), NDN Fund managing director at NDN Collective, an Indigenous-led organization dedicated to building Indigenous power.

After Dobbs, “for the very first time, white feminists think, ‘Indians can be of use to us and we can put abortion clinics on reservations.’ Not looking at what the detrimental impacts could be on our government-to-government relationship with the federal government and putting our reservations and people at risk in this time,” Echo-Hawk told Truthout.

Providing abortion care on reservations unfortunately opens up tribes to a number of legal fights which many might not be willing to take with such a hostile Supreme Court, explained attorney and professor Aila Hoss in a UCLA panel on Dobbs’s impact on Indian Country.

In 2022 before the Dobbs ruling had been made, Oklahoma Gov. Kevin Stitt stated that he was monitoring tribal nations to ensure that they don’t offer legal abortions on reservations. Governor Stitt’s comment wasn’t based on any actual evidence from tribal nations, some of which have large conservative Christian populations, but was rather an attack on tribal sovereignty. In the 2020 case of McGirt v. Oklahoma, the Supreme Court ruled that Oklahoma lacks the authority to prosecute “Indians” for major crimes and that only the federal government has the authority to do so. This led to more than 40 percent of Oklahoma being reestablished as reservations under the control of five tribal nations. Governor Stitt, with the help of the oil and gas industry, has attempted to overturn the McGirt ruling. The unsubstantiated claim of abortion clinics on reservations is just one more way Stitt has attempted to overturn tribal sovereignty.

“Since the U.S. Supreme Court decision in Dobbs v. Jackson Women’s Health Organization, two things remain unchanged,” Cherokee Nation Principal Chief Chuck Hoskin Jr. told Truthout. “First, Cherokee Nation health centers are prohibited from using federal money to perform abortions except in cases of rape, incest and when necessary to save the life of the mother. Second, Cherokee Nation will not set up abortion clinics, and is not changing our laws in a manner that would enable other outside entities to set up abortion clinics within the reservation.”

Hoskin said Cherokee citizens hold a range of views on the subject. “We must recognize how serious the U.S. Supreme Court’s decision is for so many women, including Native women. Now is not the time for politicians or candidates for office to use this issue to demonize tribes and drive a wedge between citizens in order to attack tribal sovereignty.”

However, not all elected leaders of the Cherokee Nation agree with Principal Chief Hoskin. “We need to look at codifying (Oklahoma) state law to make sure we don’t have an abortion clinic set up on a reservation,” Wes Nofire, Cherokee Nation tribal councilor and recent candidate for principal chief and U.S. Congress, told Truthout. When asked if he would support the right to abortion if it’s what tribal citizens wanted, Nofire replied, “I have a moral conviction with God that outweighs any governmental commitment I’ll ever have.”

Under a complex system of health care policy, states can use their licensing laws to punish providers for behavior they deem illegal or unethical, whether criminal or civil. This can include taking away their medical license. Under the current abortion ban, Oklahoma-licensed providers can lose their license for providing abortion care outside Oklahoma, including tribal lands.

“Our tribal leaders need to stop thinking in a colonial mindset of control and that abortion wasn’t traditional, because it was,” Echo-Hawk told Truthout.

Lorenzo went further, stating, “It wasn’t safe for me to come out or to share my experiences because of slut shaming and homophobia and transphobia. Our health and safety really depend on us having those conversations and I wish our tribal leaders would get uncomfortable with us and talk to us.”

“My call to action to cis, hetero men in tribal leadership is to get over yourselves and please get therapy. There’s so much intergenerational trauma, including through our men. Those relationships need to be repaired,” Lorenzo concluded.

Some tribes have taken a more active stance on protecting abortion rights. In a statement to Truthout, the Oneida Nation of Wisconsin stated,

The Oneida Nation believes the Supreme Court’s decision in Dobbs v. Jackson, leads yet again to another forced policy regarding Indigenous peoples’ rights to govern our own affairs and people, especially in states where tribes are forced to comply with criminal consequences set by states that relate to individuals’ personal moral decision-making autonomy.

The Oneida Nation Constitution, the U.S. Constitution and Wisconsin State Constitution all protect our peoples’ right to religious freedom, this includes Oneida Nation members with which the Nation has jurisdiction. Decisions to address pregnancy are not always easy. A woman deserves the right to make her own healthcare decisions.

Despite the clear need for abortion access for Native people, not all pro-abortion Natives want clinics on reservations. Because the legal and safety risks to tribes and Native people are so great, Lorenzo told Truthout, “I want to make it very clear that I’m not advocating for clinics on reservations. Just because white women are afraid doesn’t mean that we as Indigenous people have to be on their timeline. We’ve already been living without Roe, especially those who rely on IHS. But there’s no better time than now to have these conversations in our communities.”

*These numbers were gathered based on the gender binary and I recognize that some tribal leaders may not be cisgender or out.