How anti-abortion laws disproportionately impact Indigenous people

No group in the U.S. has been more impacted by the reversal of Roe v. Wade than Indigenous childbearing people. Between often living long distances from abortion care clinics and being challenged by extreme poverty and some of the highest rates of domestic violence and maternal mortality in the nation, this minority among minority groups is being devastated by the U.S. Supreme Court’s Dobbs v. Jackson Women’s Health Organization ruling last year that overturned Roe.

Native American and Alaska Natives are two times more likely to die during pregnancy than white pregnant people, according to the Centers for Disease Control and Prevention. A report issued in 2018 by the Colorado nonprofit Center for Health Progress found that, in comparison to non-Indigenous women in the U.S., “Native women are 2.5 times more likely to be raped or sexually assaulted.”

“The truth is that Native people are wildly, disproportionately, intensely impacted by Dobbs, that’s rooted in a very specific settler colonial history and in a lot of ways is unique to Native people,” Lauren van Schilfgaarde, a member of the Pueblo of Cochiti, New Mexico, tribe and an assistant professor of law at University of California Los Angeles School of Law, tells the American Independent Foundation.

“All you need to look at is the maternal and infant mortality rates and violence against Native women. And I think it’s important to note that for a long time and to a large extent still, we don’t know the extent of the harm because we’ve never meaningfully collected data on that harm. For so many years in public health, Native people were perceived as statistically insignificant, and the data was just never collected on a Native American basis, much less a tribal basis,” Schilfgaarde adds.

A 2021 U.S. Census Bureau report on poverty found that Native Americans and Alaska Natives experienced inordinate levels of poverty in comparison to other racial groups. According to the report, 12.4% of Native Americans and Alaska Natives live in poverty, compared with 5.7% of white Americans.

Charon Asetoyer, a Comanche activist and the executive director of the Native American Women’s Health Education Resource Center in Lake Andes, South Dakota, tells the American Independent Foundation that since abortion laws have changed in her home state, abortion seekers living in poverty have been significantly impacted. 

“I’m here in the Yankton Sioux Reservation, and we run a nonprofit for women and families, and they come here to seek help and assistance, and since that’s happened, the laws changed, women really don’t know what to do, don’t know where to turn to. And we’ve always helped women to get the necessary resources they need, and that was hard enough,” Asetoyer says.

According to Globe Newswire, researchers from First Nations Development Institute in Longmont, Colorado, found that 54% of Alaska Natives and Native Americans live on or close to reservations or in rural areas.

“I can remember being up until late hours of the night calling people, asking them would they chip in and help this woman and so on, and now it means we have to raise about twice as much because of the distance to travel. And then the extra night from the hotel, and so on. And so that has really made access for Native women, and a lot of women of color, unattainable,” Asetoyer says.

Native communities have their own tribal laws that govern their members, specifically those living on tribal land. But when it comes to reproductive health, Native Americans are hamstrung by the Hyde Amendment.

Named after former Republican U.S. Rep. Henry J. Hyde of Illinois, the amendment, originally attached to federal appropriations legislation in 1976 and amended in 1993, prohibits the use of federal funds for abortion care, including for abortions provided through the Indian Health Service. Founded in 1955, the IHS operates under the U.S. Department of Health and Human Services and is the primary provider of health care for 2.6 million Native American and Alaska Native patients.

Although Hyde offers exceptions for abortions in the case of rape or incest or to save a pregnant person’s life, a 2002 study spearheaded by Asetoyer’s nonprofit found that between 1981 and 2001, a mere 25 abortions were performed in IHS clinics after Hyde was enacted in the fiscal year 1977.

Schilfgaarde says: “Because of the Hyde Amendment, Native people have been living with an abortion ban … and so Roe has never been a reality for Native people. … Natives have been forced to seek alternative reproductive health care, relying on state and private services outside of Indian Health Service.” 

D’Arlyn Bell, a citizen of the Cherokee Nation and a scholar of public administration and law and society in the School of Public Affairs and Administration at the University of Kansas, tells the American Independent Foundation it’s essential to note that Indigenous communities, like other communities of color, have historically been targeted.

“The forced assimilation practices and policies that were instituted by the United States government against Indigenous people — forced sterilization, and forced off of reservations, forced into cities. I mean, this is a continual pattern of oppression for Indigenous people. And so as we look back into history, this is not a new thing that we’re seeing. … We see abortion bans as a perpetuation of colonization because it is just another example of taking away bodily autonomy and autonomy in general,” says Bell, a volunteer at the Indigenous Community Center in Lawrence, Kansas.

After the passage of the Family Planning Services and Population Research Act of 1970, a law designed to offer family planning services, including subsidies for sterilization, to uninsured or low-income Americans, it was widely reported that doctors used the protection of the law to coercively sterilize Native Americans of childbearing age from 1970 to 1976. In her book “Reproduction on the Reservation: Pregnancy, Childbirth, and Colonialism in the Long Twentieth Century,” Brianna Theobald, an assistant professor of history at the University of Rochester, writes that between 25% to 42% of Native women of childbearing age were sterilized during this period.

Toward the end of the 1970s, Native American activists came together to fight and to advocate for federal legislation to protect them from unwanted sterilizations, Theobald said in an article published by Time magazine in 2019. Both Indigenous people and other people of color fought for regulations that would include waiting periods and consent before a doctor could perform the procedures.

Another issue historically affecting Native communities and challenging their rights as Americans is the ongoing threat of having their children removed from their care.

The text of the Indian Child Welfare Act, passed by Congress and enacted in 1978, says that its purpose is “to protect the best interest of Indian Children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children and placement of such children in homes which will reflect the unique values of Indian culture.”

Before the act was in force, it was reported that between 25% and 35% of Native American children were forcibly removed from their communities and placed with non-Native families.

Currently, the U.S. Supreme Court is reviewing the law via Brackeen v. Haaland, a lawsuit filed by the state of Texas and a number of individual plaintiffs in November 2022 after a non-Native couple was told by Texas adoption officials that since the child they wanted to adopt was part Navajo and part Cherokee, the Navajo Nation was challenging them for custody.

The case is expected to be decided by the Supreme Court in June 2023. If the Indian Child Welfare Act is overturned, the states will once again have the power to decide the fates of Native children.

Ultimately, access to abortion care is not simply a legal issue for Indigenous people, it is also an essential part of their cultures.

Bell says of a woman on the board of the Indigenous Community Center, “Her cultural heritage has taught her natural ways for abortive care.” She adds that the Cherokee Nation, “very much has these ancient practices that they have handed down through their own ancestors to take care of women in these situations where either a pregnancy they felt was going to be not viable or there was issues around the situation that weren’t healthy or safe.”

She adds:

These are ancient, sort of indigenous ideas that we closely protect. And the reason why we closely protect these things is because if people were to understand these practices, you know, there’s all kinds of things that we would be worried about — people are very distrustful. We have good reasons to be very distrustful. These Indigenous knowledge systems, including abortive care and maternal care, we don’t speak about them, and some of these things are forbidden to be spoken about, and there’s reasons for that. And it is because of this constant mistrust.

Published with permission of The American Independent Foundation.