Document Type
Article
Publication Date
1-1-2023
Disciplines
Health Law and Policy | Indigenous, Indian, and Aboriginal Law | Law
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.
Publication Title
46 Harvard Journal of Law and Gender 1
Recommended Citation
Lauren van Schilfgaarde, Aila Hoss, Ann E. Tweedy, Sarah Deer, & Stacy Leeds, Tribal Nations and Abortion Access: A Path Forward, 46 Harv. J. L. & Gender 1 (2023)