HealthLawProf Blog

Editor: Katharine Van Tassel
Case Western Reserve University School of Law

Friday, August 19, 2022

The Indian Country Abortion Safe Harbor Fallacy

Lauren van Schilfgaarde (University of California, Los Angeles), Aila Hoss (Indiana University), Sarah Deer (University of Kansas), Ann E. Tweedy (University of South Dakota), Stacy Leeds (Arizona State University), The Indian Country Abortion Safe Harbor Fallacy, Law & Pol. Econ. Project (2022):

Following the leaked draft of the United States Supreme Court decision in Dobbs v. Jackson Women’s Health Organization, several conservative states have moved to restrict access to abortion. In response, commentators have raised the possibility of an abortion “safe harbor” on tribal lands. However, as we argue in this post, this proposal overlooks important legal, financial, political, and ethical considerations that, in our view, make the possibility of abortion safe harbors highly unlikely. Intuitively, tribes should possess the territorial authority to regulate reproductive healthcare as they see fit. But Native women know all-too-well these terms and promises are currently thin veneers atop a historical mountain of oppression. Native reproductive health has been under assault since contact. Native midwifery, healing, marital customs, kinship ties, and gender identity have all been targeted by assimilation policies. Native reproductive health has been corralled into under-funded yet paternalistic clinics. To turn to tribes reveals a disappointing ignorance of the legal battles tribes have been fighting, seemingly without end. But it also reveals a problematic disregard for the trauma and vulnerability that Native peoples face.

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