Pushing Tribal abortion ‘safe harbors’ ignores realities in Indian Country, legal scholars say

With Roe v. Wade overturned, some people have proposed Tribal Nations could become “safe harbors” for those seeking abortions. In Tribal Nations and Abortion Access: A Path Forward, legal scholars argue those Nations need to tend to their own citizens first.

These “safe harbor” proposals “largely contemplate co-opting tribal sovereignty to provide safety from state criminal and civil liability for non-Native people seeking abortion care,” the article says. “It does not consider the complicated legal and practical considerations that would face Tribes pursuing this strategy, nor the risk to providers and patients.”

The article is scheduled for publication in the Harvard Journal of Law and Gender. Two of the five authors are Indigenous: Lauren van Schilfgaarde (Cochiti Pueblo), a UCLA Law Fellow at UCLA School of Law, and Sarah Deer (Mvskoke), a University Distinguished Professor at the University of Kansas. Link here.

Reproductive justice in Indian Country needs to be understood “against a backdrop of historical and modern traumas perpetuated by colonization and white supremacy,” it says. “Over the centuries, the federal government has made reproductive decisions for Native people without any semblance of consent or consultation.”

The federal government has treaty, trust, and statutory obligations to provide health care to American Indians and Alaska Natives. It’s failed at its responsibility.

“Even today, Native people have limited access to reproductive care of any kind, including access to contraceptives, abortion, prenatal care, comprehensive pregnancy health care, perinatal and post-natal services,” the article says.

Native Nations need address their citizen’s health care needs before considering such things as abortion safe harbors.

The authors sharply respond to those who suggest these safe harbors could strengthen Tribal economies. “The comparison of reproductive rights to casinos or marijuana in this context is both unrealistic and, frankly, insulting.”

Safe harbor proposals also would amplify existing threats to Tribal sovereignty, the article says. The U.S. Supreme Court’s June 29 ruling in Castro v. Huerta dramatically expanded state powers to prosecute crimes on reservations.

Imagine the fallout for Native Nations in states that are strongly oppose abortion. Creating an abortion safe harbor on a Reservation would invite “further state intrusion.”

The authors conclude with an exhortation to Tribal leaders: “Tribal sovereignty has always been use-it-or-lose-it. … Tribes–declare reproductive rights a Tribal value and obligation. Stand with your Native people and exercise Tribal sovereignty to protect Tribal sovereignty.”