I got an email yesterday from a regular reader who asked about something I had been mulling over too: If Roe v. Wade is overturned, can Indian tribes open abortion clinics of their own on tribal land? If they did, could they use them to attract patients from nearby states that have banned abortion?
In other words, the casino model but for abortion. Unfortunately, I had already taken a superficial look into this and every hyperlink I clicked just seemed to make the answer even more vague. Here's what I found out:
- Legally, Indian tribes have the sovereign power to make their own decisions on abortion. This will probably end up in court eventually because everything ends up in court eventually, but as near as I can tell there's not much controversy about it.
- In practice, health care on tribal land is provided by the Indian Health Service, a federal agency. However, the IHS is bound by the Hyde Amendment, which prohibits federal funding of abortion except in cases of rape, incest, or the health of the mother. In reality, though, IHS clinics and hospitals perform no abortions at all, and given the widespread poverty in Indian Country this means that most native women have no realistic access to abortion.
- To address this, tribes could raise money to build their own abortion clinics, which would provide access to abortion for both their own people and for residents of nearby conservative states.
.
(In 2006, the president of the Oglala Sioux Tribe, Cecelia Fire Thunder, tried to do exactly this. The tribal council had previously voted unanimously to ban abortion, and after a battle that remains infamous to this day, they impeached her. You will be unsurprised to learn that the council was mostly male. You can read about it here.) - Needless to say, a program of opening abortion clinics on tribal land depends on whether tribes want to attract outsiders to abortion clinics. This likely varies from tribe to tribe, just as it does from state to state. Some tribes are conservative about reproductive health and have already banned abortion in their own constitutions.
- For what it's worth, there appear to be no Planned Parenthood clinics on tribal land anywhere. There are a few independent clinics here and there that provide abortion services, but their numbers are minuscule.
- Of course, things are changing. Access to abortion may be limited in tribal areas that adjoin conservative states, but if these states ban abortion then tribal access to abortion will essentially be banned too. This is likely to change attitudes. It will also likely change the odds of attracting outside funding for abortion clinics.
This all adds up to a great big "I don't know." But perhaps there are some people who know more about native culture than me and can offer a few informed opinions in comments.
Forget about legalities -- there is no way a Republican-controlled Congress would not pass some law[s] blocking this (never mind that that's against treaties with the native nations, 'cause disregarding those treaties has a long and established history in America). And it's pretty safe to assume the current SCOTUS would uphold the block (likely through the shadow docket so they wouldn't have to contrive some justification for their decision).
Pretty sure supreme court precedent is that there is no judicial review of treaty violations.
This would depend on whether there are outside backers, not just on whether the tribes want to do it. Will abortion bring in as much money as gambling? I mean money to the operators, not the tribes. Where would such money come from?
Hospitals (pre-covid at least) made tons of money. Do you think it really costs $20 for an aspirin? In a hospital, it often costs that or more... all pure profit. Abortion is way cheaper than raising a child to the age of 18, so for anybody who is unwillingly pregnant and isn't living paycheck-to-paycheck, it's a no brainer to just pay whatever is asked at the clinic.
I think the bigger problem is going to be finding doctors who want to live near a tribal health clinic to perform the abortions. Prescribing pills is one thing - which will help tons of women in the first few months, for sure. But flying in and out to perform surgical abortions or living full-time nearby is not going to be attractive to many doctors, not least because they'll also be at risk of assassination, like Dr Tiller who flew into clinics to do such activities.
You appear to be contemplating extremely rural native communities. Many native communities are within commuting distance of quite substantial non-native cities, and clinics in those communities are the ones that will attract the most business from "outsiders".
Put a woman's health clinic at the Potawatomi Bingo Hall & Casino in the Menomonee Valley of Milwaukee. Come for the D n' C, stay for the buffet.
(I am serious.)
Before anything else, abortion clinics on tribal lands would obviously require the active participation of the tribes and there’s no indication that such support would ever be forthcoming.
Similarly, plans which depend upon billionaires forking over copious amounts of cash in perpetuity need to have billionaires ready to sign checks and I’m not aware of even a single one who is.
If tribes believe abortion is evil, there would be a great deal of justice in them allowing abortion clinics on their land on the condition that the clinic signs a contract forbidding them to provide the service to citizens of the tribe.
Nobody in this thread, including Kevin in the OP, has the slightest idea of what Native American tribes think about abortions, want to do about abortions, or would be willing to do about providing abortions with appropriate incentives. As with Kevin’s fantasies about billionaires stepping in to prevent conflict over abortions and birth control, this is just a way for him to see something positive that allows conflict to be avoided.
Neither Native Americans nor Native American tribes are monoliths. They have varying opinions.
None of which coincides with Kevin’s proposed solution to the problem. Let’s be clear: no billionaires have stepped up nor any Native American tribes. This is just just so much wishful thinking which distracts us from dealing with the harsh reality of the situation.
It would be so ironic, and so American, for the women on reservations to FINALLY get decent health care, but only because they can offer something non-reservation women need but can't otherwise get.
It would be the new "... but Blacks get to say it".
Sure, they *could* do it. They could also tell the rest of us to sod off and solve our own problems instead of asking Indians to save us from ourselves. Now, if someone felt like coughing up the money to set up and run these clinics, and if they also provided health care to the tribes, that might get a better reception.
But the question is, who's going to cough up that money? Certainly not the red state surrounding the reservation. Not the Feds, either--first because of the Hyde Amendment, and second because the funding would be yanked the first time Republicans got control of Congress.
So that leaves blue states and sympathetic billionaires. Maybe a consortium of rich, deep-blue states could sell it to their voters as a way to give the middle finger to Republicans. *Maybe*. It'd be a tough sell, though.
(I also suspect most tribes make a point of having decent relations with the government of the state where they reside. A narked-off state government could find a lot of ways to retaliate against a tribe within its borders, without infringing tribal sovereignty.)
Such clinics could be very profitable. Funding would be provided by private investors motivated by nothing more noble than greed.
Greedy but ready to risk reprisals by Republicans and perhaps even prison strikes me as a rather unlikely combination.
There are lots of people, drug traffickers for instance, who are willing to risk prison in the pursuit of profit. In any case, if you live in a pro-choice state while investing in an anti-abortion state, the risks of reprisal or prosecution are small.
When you round up drug traffickers with that precise combination of altruism and venality, let me know. For the moment, however, I think speculation about billionaires and Native American tribes heading off a confrontation between blue and red states is pointless and probably counterproductive.
I think what's being overlooked is that Republicans have made it clear the direction they plan to take, namely, to create state laws with extraterritorial reach. Under such laws, it is the act of having or performing an abortion that is the crime regardless of where the act takes places. That means, even if either a bunch of billionaires or Native American tribes make it possible for women in red states to travel elsewhere to receive abortions, they could nonetheless be prosecuted upon their return to their home state.
I can understand why most women would have to return to the Sh*thole state. Maybe women could set up a system to relocate the refugees. Friends of our daughter have taken in a Ukrainian family.
I think it would be difficult for most women not to return to the place where their family and friends also live. But, just as importantly, the purpose of such laws would be to chill the exercise of the right in blue states through the threat of prosecution—just as the Texas law has been effective in shutting down abortions there even though there's no lawsuit being brought.
Similarly, the threat of prosecution is likely to shut down abortions in blue states because doctors will likely be unwilling to risk being prosecuted in red states.
I think that allowing state legislatures that kind of extraterritorial reach would be a step too far for even the current SCOTUS.
I’m not so sure. This idea of women going to other states and “getting away with” having an abortion has been a constantly reoccurring theme almost from the minute the Dobbs opinion was released. I don’t think that the justices would consider it more radical than outright overruling Roe, which everyone said would be a step too far.
The problem is that there is no way to rationalize restricting extraterritoriality to abortion. Would it be acceptable for a state to, for instance, make it a crime to leave the state to engage in gambling that is locally forbidden?
Arguably, yes. The last time we went around with this in Louisiana in anticipation of Roe being overruled the argument was that we could simply rely upon prosecutors and legislators to act responsibly and embrace “this far and no further”.
Apart from the Fugitive Slave Acts, there is actually precedent for extraterritorial laws. Treason does not require an act on American soil and neither do the various “antiterrorism” which criminalize harming Americans abroad.
There is precedent for federal extraterritoriality, not for states doing the same.
That’s very true. And it’s very unlikely that there were six justices (outside of the morons who decided Dred Scott) in the history of the court who would open Pandora’s Box and uphold such a law. But it’s it’s important to remember that we’re now officially living in the United States of Calvinball.
It certainly would be ok to make it illegal to leave the state for any such conduct. They just can't make the conduct outside the state illegal.
I think you will find that you have a constitutional right to leave the state, and what you do while travelling is governed by the laws of the place where you do it. In other words, it would NOT be ok to make it illegal to leave the state for any such conduct.
That’s always been the traditional thinking and it’s why you could smoke come in Amsterdam or visit the Mustang Ranch or gamble in Las Vegas without fear of being prosecuted in your home state where those things are illegal. But, realistically, the only reasons why were that concepts of Westphalian Sovereignty were deeply ingrained in the legal world and throwing people in jail for doing something that was legal in that place would be politically risky.
That’s not the world we live in today. The Republicans are increasingly sheltered from the necessity of winning elections to stay in power. And the base of their party wants complete control over sexual and reproductive activities and eventually the party’s going to deliver.
It would not be okay under traditional theories. It will be okay because this court has rejected traditional legal and constitutional thinking in favor of Calvinball
I think you’re describing a likely starting point which will effectively prevent women within red states from obtaining abortions, mainly through the same kind of in terrorem effect that has already basically shut down abortions in Texas. This is particularly true inasmuch as both the act being criminalized and nearly all of the evidence needed to secure a legitimate conviction will be in a hostile and uncooperative sovereign state.
It skirts traditional concerns about the operations of the domestic laws of the enacting state upon persons engaging in activities which are entirely legal in other places. But probably a normal Supreme Court would strike it down on the grounds that it’s improperly impinging upon the sovereignty of other states which have chosen to make both abortions and birth control more freely available.
But it does so without achieving the objective of ending abortions and regulating the sexual behavior or reproductive activities of women. Therefore, I think that a law such as you’re describing might be a stating point to allow some women in red states to evade the legal prohibition on abortions in the way that Kevin’s been suggesting. But inasmuch as there has never been the slightest indication that conservatives no longer wish to extend their power and their policies universally, this ban on traveling to obtain an abortion where is is legal should be seen as only a starting point.
I think what's being overlooked is that Republicans have made it clear the direction they plan to take, namely, to create state laws with extraterritorial reach.
I think what's also being overlooked is the possibility (probability?) of elections nullification. My own view is that the coming wave of right wing social policy legislation is likely to be extremely unpopular with voters, especially if, as seems likely, it goes beyond abortion into such areas as contraception and same sex marriage.
But this may not matter if elections no longer matter.
The combination of deeply reactionary and repressive public policy with authoritarianism has been a relatively common one in modern history. There's no particular reason to think America is magically immune to such a possibility, and indeed plenty of reason to believe that's exactly where we're headed.
I don’t think the two outcomes are mutually exclusive. Even if we get past the 2024 election and Trump’s simply installed as president in a judicially blessed coup, the six Republican justices aren’t going nowhere. My guess is the laws get passed very quickly in red states and get resistance in blue states just as quickly. Dred Scott redux.
I don’t think the two outcomes are mutually exclusive.
Nor do I. But I do suspect they're mutually reinforcing. A Republican Party that no longer has to seriously compete in elections is one more likely to throw caution to the wind in terms of policy-making. Similarly, a Democratic Party that is still capable of winning electoral majorities is one that, theoretically at least, should be able to use those majorities to enact legislation that pushes back against the reactionary agenda, and fortifies democratic norms (ie, court expansion, new states, etc).
I think that the Democrats have two chances to save the republic. So far they don’t seem to be setting the world on fire with their tepid support for abortion rights. I think they’re going to be crushed in 2022, partly because they are weak and conflict adverse; and partly because of how the concerns you’ve described will inevitably tilt every election going forward.
It’s hard to see things getting better.
You can criminalize leaving the state to get (or perform) an abortion. Don't think you can actualize criminalize conduct outside the state.
If my state could criminalize activity in another state surely I could be prosecuted upon returning home after smoking marijuana in Massachusetts. Or even Nova Scotia
To both clarify and slightly oversimplify, the reason why you could smoke dope in Amsterdam without be prosecuted was the each state was considered sovereign on its own territory (Westphalian System) and, in traditional criminal law theory, the act giving rise to the prosecution had to take place on the soil of the prosecuting state.
So, implicitly, it’s not illegal in Massachusetts to smoke dope but rather it’s illegal to smoke dope in Massachusetts. Similarly, at least for the moment, you can be sued in Texas for performing or having an abortion in Texas but not for having an abortion in California
This, for lack of a better term, Westphalian sovereignty is what the Republicans in red states are inching toward overthrowing and which I think the Supreme Court will uphold.
& murder trials for women in Georgia who had abortions while it was legal.
Tribes would need a airport on their land. No state inspections at borders. Small planes where no records are held. My wife is a pilot and does relocation flights for dog rescue. Lots of pilots do medical flights. They could leave off the ADSB transponder. Could be problems with insurance. The tribes could provide insurance.
I wondered the same thing, especially after the Texas vigilante law was upheld. There are only 3 reservations in Texas, one very small one near El Paso, one tiny one on the border of Mexico (not close to much of anything) and one that is about 90 minutes away from Houston. Not really good options for that in Texas.
All I can think about is the hate that would be put on Native Americans & how they were "getting their revenge on the white man by killing their babies" as Tucker Carlson would *surely* say.
If I ran a tribe I certainly wouldn't want to inject myself and my tribe into one of the most contentious issues amongst blue eyed devils. And abortion isn't the money maker that casinos are.
There are some tribes that would be delighted to give their local palefaces a great big middle finger.
Abortion maybe not, but a health spa with medical support, fitness coaching, prenatal health checkups, wellness programs, natural healing and childbirth support, and sometimes abortions when needed, just might.
It's all about branding.
Well maybe that will help but we need Roe in the laws of the land, can it happen? No idea. I sure hope it does though.
I think it all depends on the tribe and what they want to do. Some "might" decide to have clinics but they're going to want more than just that. Any foundation looking to spend money are probably going to have fund any number of improvements to both tribal health services, infrastructure and other reservation services. Oh, you may want to build small airports too because what's to stop demented GOP governors from using their state police or National Guard to set up "checkpoints" on roads leading into reservations to prevent people from going there to access abortion services. Yeah, this where we're headed by "going back to the states."