The legacy of colonialism continues to exist in 2022 through this most recent action by the U.S. Supreme Court to deny Native — and all — women the right to body sovereignty.
But in reality, no tribes have announced plans to offer “abortion on demand.” A complex web of criminal, civil, and state laws would make that an “uphill battle,” says Alex Pearl, a tribal law professor with the University of Oklahoma and enrolled member of the Chickasaw Nation. Suppose that a tribe or a Planned Parenthood managed to set up an abortion clinic on reservation land without using federal funds. Under current federal law, states likely wouldn’t be able to prosecute a Native abortion provider who performed an abortion on a Native patient, Pearl says. But fewer than 0.5 percent of registered physicians in the United States are Native American. And the situation becomes more complicated when non-Native doctors and patients are involved. That’s partly because, just days after the Dobbs decision, the Supreme Court struck a blow to tribal sovereignty with its ruling in Oklahoma v. Castro-Huerta. The court held that states have the authority to prosecute non-Native people for committing crimes against Native people on tribal land. That means that, in a state where abortion is criminalized, any non-Native doctor could likely be prosecuted for performing an abortion on a reservation. Beyond that, it’s possible that states like Oklahoma could revoke doctors’ licenses for performing abortions, says Aila Hoss, a professor of health and federal Indian law at the Indiana University. Oklahoma and many other states can revoke state licenses for “unethical and unprofessional conduct,” Hoss says, including for violating criminal laws—even if the doctor isn’t convicted. Even if tribes were to overcome the legal hurdles, it would be a mistake to take it for granted that they would want to set up clinics on their land, Pearl says. “Tribal communities are not monoliths,” he says. “There are cultural norms, religious views, that are not always going to track the American left-right, conservative-liberal political dichotomy.” Native tribes hold varying beliefs about when life begins. For some, a combination of tribal traditions and the influence of Christianity lead to the belief that life begins closer to conception. At the same time, abortion care has been a practice in many nations since time immemorial. As a Diné woman, Curley says, she grew up learning that bodily autonomy was to be respected, and that she alone should decide when to give birth. If someone needed to terminate a pregnancy, they did so in a holistic ceremony that included care before and after the abortion. Despite the current threats to abortion access, the Native activists Mother Jones spoke with say they’re hopeful that more comprehensive reproductive care will eventually be available on tribal lands. Activists are lobbying to change laws while also revitalizing traditional maternal medical care. But “those are conversations for us as Indigenous people to have among each other without the influence or the feeling of urgency from white feminists,” says Lorenzo of Indigenous Women Rising. “And our timeline is not the same as white people. We have so much more to consider around our culture, our language, our tradition.”
While we are sovereign Native Nations the onus of your reproductive care and choices is not on us.— Frances Danger (@FrancesMFDanger) June 24, 2022
1) Do not ask us to undo what your colonialism has done to you when you've sat idly by as it works every day to destroy us.
This story originally appeared on Mother Jones on August 12, 2022. It is republished here with permission. Founded in 1976, Mother Jones is America’s longest-established, reader-supported investigative news organization. It is based in San Francisco, with bureaus in Washington, DC, and New York.
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