Eight states have enacted laws that place severe restrictions on access to abortion in recent weeks. Alabama signed the most punitive law on the books; its sponsor overtly stated the bill’s intent: to overturn Roe v. Wade. Lawmakers in 11 states have introduced “heartbeat bills”—laws that prohibit abortions after the detection of a fetal heartbeat—typically at six weeks of pregnancy, in many cases, before women are even aware they are pregnant.
Republican-controlled states are pushing the envelope on abortion in a series of sweeping restrictions, in what many women see as an archaic move to set back women’s reproductive rights to a dangerous time when illegal abortions led to death, disfigurement, or infertility.
Native women have been battling the pro-life movement for a long time
Sarah Deer, Muscogee (Creek) Nation, is professor of Women, Gender, and Sexuality Studies and Public Affairs and Administration at the University of Kansas. She is a 2014 MacArthur fellow and has been selected for induction into the National Women’s Hall of Fame in September. She is recognized for her work on the Violence Against Women Act and the Tribal Law and Order Act, as well as her advocacy work on sexual assault and domestic violence in indigenous communities.
Deer told Indian Country Today that Native women have been battling the pro-life movement for a long time. “Well before the Alabama law, Native American women have been denied access to abortions,” said Deer. “Abortion rights are talked about in a vacuum as if we have a choice, but there are few choices.”
Deer insists that too often people miss the deeper story. The pro-choice story and language are predominantly religious. “But for us, for Native people, it’s different,” she said.
One issue regarding abortion for Native American people is that it is an aspect of health care. Many in Indian Country strongly assert that health care is not a privilege, It is a right defined by treaties entered into with the United States government.
Charon Asetoyer, Comanche, is the founder and executive director of the Native American Women’s Health Education Resource Center on the Yankton Nakota reservation in South Dakota. Asetoyer was presented with the 2001 Wise Women Award by the Center for Women Policy Studies and honored for her achievements in promoting social change for women.
“We’re the only race in the country that is denied access to abortion merely because of our race. Indian Health Service is a provision of our treaties, for land seized. In exchange for the land that was taken, or seized from us, there were stipulations in our treaties, and health care was one,” Asetoyer explained.
“We access health care through the federal government, and the federal government prohibits funds for abortion services.”
The contemporary historical record surrounding Native women’s health care is fraught with few instances of what qualifies as care. By definition, care is “the provision of what is necessary for the health, welfare, maintenance, and protection of someone or something.” What Native women received was more the opposite: neglect and disregard.
What is little known and seldom discussed is that the “reproductive health care” Native women received from the government was instead a sinister detriment to women’s health. For instance, the Nixon administration admitted to widespread sterilization abuse by the Indian Health Service in the 1960s and 70s, when vast numbers of Native women were sterilized, either by coercion or involuntarily so without informed consent.
Pinkerton-Uri found that the Indian Health Service singled out full-blooded Native women for sterilization.
According to a study by the U.S. General Accounting Office, 4 of the 12 Indian Health Service regions sterilized 3,406 American Indian women without their permission between 1973 and 1976. The GAO finds that 36 women under age 21 had been forcibly sterilized during this period despite a court-ordered moratorium on sterilizations of women younger than 21.
Nicole Martin, Diné and Laguna Pueblo, is one of the co-founders of Indigenous Women Rising in New Mexico. She said that as late as the 90s in Albuquerque, the Indian Health Service played a big role in the sterilization of Native women without their consent; sometimes it would happen at very young ages; as early as 10.
“Women would go in the Indian Health Service hospital for an appendectomy or with other medical issues and end up with their tubes tied,” said Martin.
In the 1980s, the Indian Health Service prescribed Depo-Provera, birth control, to 200 Native women, despite the lack of approval from the U.S. Food and Drug Administration for its use as a contraceptive. Depo-Provera was prescribed for more than ten years after it been found to contain cancer-causing agents. Depo-Provera continued to be given to severely retarded Native women for the purpose of eliminating menstrual bleeding altogether for the convenience of their caretakers
According to the Guttmacher Institute, the abortion rate is six times higher among poor women than among affluent women. Nearly 1 in 4 women has terminated a pregnancy by age 45, and more than half of women who seek abortions are already parents. Women in poverty live with the fear that they will be unable to provide for their children. For many Native women with few options; ending their pregnancy will help them provide a better life for the children they already have.
Native American women are disproportionately at risk for sexual assault and adolescent pregnancy. Nearly half (46 percent) of Native American women have their first child before the age of 20.
Native Women, Veterans on the Front Lines of Attack
Few people outside of the reproductive justice movement are aware of the extent of the existing reproductive health care restrictions Native women face, never mind the growing list of abortion bans. Native women are no strangers to the federal overreach of control over their bodies and lives.
Asetoyer doesn’t pull any punches when discussing the Indian Health Service and the services Native women get or don’t get, and whether the level and quality of health care is adequate.
“The Indian Health Service, the federal agency responsible for providing health care on all reservations, is failing Native American women on many fronts,” said Asetoyer. Native American women do not have access to reproductive health services such as abortion, emergency contraception, and sometimes even condoms. “The most pressing reproductive health issue for Native American women is access to services that the mainstream has access to.”
In 2008, the Native American Health Education Resource Center noted in a summary report that the Indian Health Service has long denied Native women the same options of birth control that is afforded to mainstream women.
Angela Gonzales, Hopi, is associate professor of Women and Gender Studies and Justice and Social Inquiry in the School of Social Transformation at Arizona State University.
“There’s this phrase terror-tory, it’s about the terrorism that happens on our lands and to our environment. Aren’t our bodies our own territory, experiencing a similar attack, under another form of assault?” asked Gonzales. “Native women are the proverbial canary in the coal mine. We’ve already been living with these restrictions on reproductive rights and lack of access.”
The new abortion laws don’t ever have to be implemented and the Supreme Court doesn’t have to overturn Roe to make abortion inaccessible for Native women; restrictions are nothing new. For Native women, the lack of access to abortions has been real for years.
For most Native women, private health care is unaffordable, thus the Indian Health Service serves as the primary health care provider.
Asetoyer explains that because of the Hyde Amendment, Native women cannot access abortion unless it’s rape or life endangerment. “It shouldn’t be that way. We should be able to access abortion if we decide that we want or need to have an abortion,” she said. “They’re not providing that service, they restrict it.”
The wave of new abortion restrictions
In 2019, 13 states have passed or are considering bills that make abortions illegal after six weeks of pregnancy.
The Alabama law, signed on May 15, is the single most punitive abortion law in the books. Alabama’s law prohibits the procedure outright and bans abortion in nearly all cases, with no exceptions for rape or incest. The law makes performing an abortion a Class A felony, punishable by up to a 99-year prison sentence for doctors who perform the procedure. This recent spate of abortion restrictions marks the most direct challenge to Roe v. Wade, the 1973 Supreme Court decision that established a constitutional right to abortion until the fetus reaches viability.
Terri Collins, R-Alabama, who sponsored the bill, made no bones about the intent of the law. She said, “This bill is about challenging Roe v. Wade.” It was signed into law by 25 male senators. It was reported that after the passage of the law, outside the Alabama Senate chambers, men exchanged fist bumps and handshakes.
“This is a critical situation for all women, especially Native women,” said Asetoyer. “You can rest assured that if men could bear children this would not be an issue. The majority of decision-makers in this are men.”
The pro-life issue is framed as being aggressively in favor of the life of every fetus. But Asetoyer insists, it’s not about life. “They’re not concerned about improving healthcare, education, nutrition, or the lives of Native children.”
The Alabama law—and another one in Georgia with extreme penalties, which would imprison women for having abortions—have turned up the temperature on the abortion issue.
The American Civil Liberties Union and Planned Parenthood Southeast filed suit May 24 seeking to block the Alabama law from going into effect. The 39-page complaint argues that the elimination of abortion in Alabama will have a disproportionate impact on black and low-income residents.
States are permitted by the Supreme Court to regulate abortion after the fetus is viable, which usually occurs between 24 and 28 weeks of pregnancy. And from 2011 until this year, bans around 20 weeks of pregnancy were more the norm.
And then came the “heartbeat bills.” Ohio was the first state to ban abortions once a fetal heartbeat is detected, which can be as early as six weeks. Similar “heartbeat” bills are in the works in 10 other states Missouri, Tennessee, Florida, Illinois, Louisiana, Maryland, Minnesota, New York, South Carolina, and West Virginia.
Missouri has been the latest state to strike a blow. Gov. Mike Parson, a Republican, signed a bill on May 24, that similar to the Alabama law, criminalizes abortions. Like Alabama, the legislation does not have exceptions for victims of rape or incest but allows abortions in the case of medical emergencies. Parson is on the record saying he would like to make Missouri "the most pro-life state in the country.”
Missouri Representative Doug Beck, a Democrat, called the law barbaric. "This gives more rights to the rapists than it does to the mother," he said.
No heartbeat bills have yet gone into effect, and all have or are likely to be challenged in court.
The push for these laws is part of an aggressive new strategy by Republican lawmakers in the legal fight over abortion, which has escalated since 2010 when they gained control over state legislatures. In the last eight years, more than 400 state-level restrictions on abortions have been enacted, according to the Guttmacher Institute, a research organization that supports legal abortion. These state efforts have been extensive and diverse, ranging from increasing regulations on clinics and abortion doctors, and mounting requirements like mandatory counseling, waiting periods, and ultrasounds. The cumulative effect of all these restrictions has resulted in strangulated access.
Rachel Sussman, the national director of state policy and advocacy at Planned Parenthood said that the patchwork of laws enacted by many states have created entire regions where access to abortion is almost impossible. “The latest bans should be viewed not as an aberration, but as an escalation of state legislators’ strategy to overturn Roe,” she said.
New abortion legislation creates a 'Trail of Fears'
Missouri has enlisted the Targeted Regulations of Abortion Providers, aptly referred to as TRAP, to shut down its last-standing abortion clinic. In 2005, Missouri had five abortion providers, four were shut down due to stipulations in the regulations. This week the state put the only clinic on notice that it will pull its license, leaving women in that state in what some are calling an “abortion desert.”
There are 24 other states with similar targeted regulations. It appears that states don’t need an abortion ban to outlaw abortions, they can just regulate clinics out of existence.
“This is a sad time for all women. It is dangerous any time you take away medical services that are safe and done in a clinical environment, you push it to a deadly situation," Asetoyer said. "You’re going to have outcomes that are lethal. It is dangerous because we’re so close to going back to when abortions were illegal and done in back alleys in unsterile environments when women died.”
Pro-life advocates focus on the sanctity of life on religious and moral grounds. But Asetoyer doesn’t buy it.
“The number of states with increasingly restrictive and punitive abortion laws really leads you to believe it’s more than a moral question,” Asetoyer said. “It’s immoral when rape and incest are not excluded. You have to ask: Are they trying to minimize rape and incest as crimes?”
“There are so many reasons to be concerned about this trend and how many laws are being passed by white men who have no stake in the matter,” said Deer. “This is dangerous because people who are desperate, are likely already in bad situations. This is very traumatic for them and will only aggravate issues for Native women.”
Megan Minoka Hill, Oneida, is the director of Honoring Native Nations at Harvard University. She believes the issues are an extension of sovereignty, in this case, Native women's’ sovereignty over her body. “What we’re seeing is an overall erosion of rights, that’s why this is dangerous,” said Hill. “The collateral damage is terrifying. As with our sovereignty, if we don’t exercise our rights, we lose them. We need to give breath to those rights and not take them for granted.”
If You Can’t Beat ‘Em, Eliminate ‘Em
Over the past few years, abortion clinics across the country have disappeared, in part due to new state laws. Dozens of clinics across the South, Midwest, and Plains states have gone the way of the golden tiger, becoming a rare thing. In New Mexico, there were 12 abortion providers in 2011; now there are five. Alabama had more than 20 abortion clinics in the 1990s; now it has three. Missouri’s abortion providers have dwindled from six in 2008 to none if the state has its way; other states with only one clinic include Kentucky, North and South Dakota, Mississippi, and West Virginia. In Wyoming, 96 percent of women live in counties with no abortion clinic.
Rachael Lorenzo, Laguna Pueblo, Mescalero Apache and Xicana, is a co-founder of Indigenous Women Rising in New Mexico. Indigenous Women Rising was established in 2014 shortly after the Respect Albuquerque Women campaign organized in an effort to defeat a 20-week abortion ban. Indigenous Women Rising’s mission is to ensure Native and Indigenous People’s inherent right to equitable and culturally safe health options through accessible health education, resources, and advocacy.
Lorenzo heads up the abortion access arm of Indigenous Women Rising. The organization has an abortion fund to help indigenous women in the US and Canada with financial assistance in seeking an abortion. It is the only fund dedicated to assisting Native women.
“We have helped 44 women since 2018, primarily in the Southwest, from rural areas in Arizona and New Mexico,” said Lorenzo. “But whether you’re urban or on the rez, you’re still impacted by the restricted access to abortions and reproductive care.”
Lorenzo said it’s not just the growing list of states further restricting abortions and access, it’s the entire political landscape and Trump’s attempt to undo decades of federal Indian law and treaty provisions. “It scares the hell out of me, but we won’t stop doing this work. We’re here working to assist Native women all day, every day.”
Indigenous Women Rising accepts donations to help grow their abortion fund and women seeking assistance can contact the organization at (505) 398-1990.
In January, on the 46th anniversary of Roe v. Wade, Lorenzo wrote, “As many states are chipping away at women’s health across the country, from abortion to insurance coverage for birth control to a scarcity in providers, we have a responsibility to protect our healthcare, to protect each other, by any means possible. We acknowledge that Roe has not been enough to ensure access to abortions for all those who’ve needed it, especially people with low incomes, people who the government withholds options and resources from, especially people of color and Indigenous people. Reproductive coercion is not history; it’s happening today. We must work to protect and expand the promises and protections of Roe.”
Hyde as Hindrance
Native American women living in tribal territories are U.S. citizens and, thus, are entitled to abortion rights guaranteed by the 1973 Supreme Court decision Roe v. Wade. However, the Hyde Amendment restricts the use of federal funds for abortion through the Indian Health Service.
Asetoyer has been fighting against the Hyde Amendment because, in effect, it violates the constitutional rights of women. She says it amounts to a systematic infringement on reproductive choice for Native women.
In a perverse and ironic turn of events, all other non-Native women in the U.S. have finally caught up — or been sent in a backward time warp — to the state of reproductive rights Native women have long faced: the inability to make personal choices and held at the mercy of government dictates.
“Our reproductive choices are decided for us by the federal government through the Health and Human Services, specifically the Indian Health Service,” said Asetoyer. “And it’s up to them as to whether or not they want to provide various services.”
The Hyde Amendment, passed in 1976 and affirmed by the Supreme Court in 1980, prohibits federal funds from being used for abortions except in cases of rape, incest or endangerment to the life of the mother. The law effectively leaves the decision of funding abortion to the states, and most states choose not to fund them. The law’s impact is particularly devastating to poor women and discriminates against women who often need abortion services the most: those who have reduced access to family planning, and experience higher rates of sexual victimization.
Because Indian Health Service is a federal agency and federal funds are restricted for abortions, the primary agency from which Native women receive their health care amounts to a brick wall. “We’ve already been living with the inability to get abortions. The Hyde amendment is a form of the Alabama law,” Deer said.
In October 2002, the Native American Women’s Health Education Resource Center released findings that the Indian Health Service was not providing lawful abortion services under the Hyde Amendment to Native women. The study found that 85 percent of the units surveyed were “noncompliant with official Indian Health Service abortion policy” and 62 percent stated that they do not provide abortions even in the case of life endangerment.
The Hyde amendment is a form of the Alabama law
A 2003 report titled Access to Abortion Services via Indian Health Service under the Hyde Amendment found it extremely difficult for a woman to obtain abortion services in South Dakota. Only one private abortion clinic exists in the state. Indian Health Service follows federal abortion policy that permits federal funds to be used in cases of rape, incest, or life endangerment; yet they failed to provide these guaranteed services to victims.
The study found that over the course of 22 years, a mere 25 abortions had been performed by the 352 Indian Health Service nationwide, a figure hugely disproportionate to the number of rapes reported.
Reproductive Justice in Indian Country
What does reproductive justice mean? For indigenous women, it means being able to have equal access to care and services, and the ability to make personal reproductive health decisions. Reproductive rights are about respecting Native women’s right to decide for themselves.
“It means being able to access pregnancy termination services if you so choose, being able to access and choose what kind of contraception you want, being able to decide the size of your family—if you want to have children, if you don’t want to have children—and not having these things dictated to you,” Asetoyer said.
“It’s being free from oppression, it’s being free from rape, it’s being free from violence—there are just so many things that make up reproductive justice,” Asetoyer said. “For years we’ve worked very hard on trying to have equal access to health care that would improve the quality of health, and it starts with reproductive health.”
Deer says that reproductive justice is about so much more than the obvious question surrounding abortion and personal choice.
“Anytime a government tells a woman what decisions she’s required to make for her health, is problematic,” Deer said. “Reproductive justice is not just about having and ending pregnancies. We need to talk about having children and being able to raise them, keep them, and have healthy families.”
Preventing Prevention and Dismantling Effective Programs
A 1994, a South Dakota Native American Youth Behavior Survey found that 87 percent of female high school seniors reported having sexual intercourse, and 92 percent of those respondents reported they had been forced to have sex.
Health care professionals and educators all agree that the effective and intelligent approach to reducing abortions is by providing access to birth control, providing sex education to teens, and providing strong support (economic and otherwise) to pregnant women.
In February 2018, the Trump administration cut off funding for sex education programs across the country—many midways through their funding cycles and without explanation. A few programs were terminated immediately, despite being awarded funding through 2020, and some were granted one more year.
The Department of Health and Human Services eliminated funding for 84 organizations and programs including city and county health departments, universities, hospitals and nonprofit organizations with proven track records of effectiveness that provided sex education and health information to more than a million teens. Many of those programs, focused on low-income and minority teens, and rural populations, who have higher pregnancy rates.
Mitigating the blow
Despite the red state drive to severely restrict or altogether ban abortions, according to a new Reuters-Ipsos poll, 58 percent of Americans say abortion should be legal in most or all cases.
Opposing the GOP effort to undo Roe v. Wade, 10 states have introduced bills to protect abortion rights. Indiana, Illinois, Massachusetts, Missouri — which has also introduced restrictions — New Mexico, Nevada, New York, Rhode Island, Texas and Vermont. New York signed the Reproductive Health Act in January 2019, strengthening abortion protections. Some states, including Nevada and New Mexico, are also working to repeal old restrictions that have been on the books for decades, to prevent them from being enforced if Roe were overturned.
The Women’s Health Protection Act, first introduced by Sen. Richard Blumental, D-Connecticut, in 2013, would create a federal safeguard for abortion access throughout the United States. The Women’s Health Protection Act was reintroduced for the fourth time last week.
“The fact is, the majority of Americans support a woman’s right to access safe and legal abortions,” said Rep. Judy Chu, D-California. “The draconian bills out of states like Alabama and Georgia were the final straw. We cannot subject another generation of girls to the cruelty of having somebody else make choices about their bodies.”
Will They or Won’t They?
Despite abortion opponents’ intent, legal scholars suggest that it could take years for any case to reach the high court, and the justices may opt not to take up the case, as they did in 2016 in the case of North Dakota’s 6-week band and Arkansas’s 12-week ban. Their refusal essentially leaves lower-court decisions in place.
The Supreme Court declined to hear two abortion cases in December. Just this week, they sidestepped action on the second part of an Indiana abortion ban. Justice Clarence Thomas issued a statement saying that “Although the Court declines to wade into these today, we cannot avoid them forever.”
Technically only four justices’ votes are required for the court to consider any of the multiple abortion cases surfacing. Only time will tell, but it seems to be a question of when, not if.
Get Up, Stand Up
In the past few weeks, all over the country there have been organized activities: protests, rallies, and marches involving women of all colors.
What can Native women do? “We have to be involved in the political arena. We have to make our voices heard, we have to stand up and protest against these inhumane laws,” Asetoyer said.
Her message to Native women: Don’t accept this decision, stand up for your rights.
“Shout from the highest mountain top,” she said. “We can’t go back, we’re not going to take this without a fight.”
Deer says the need to push back on the Hyde amendment is particularly important.
“There is little effort outside of Charon’s work to repeal the amendment. She has been working consistently to educate people about it and how it endangers Native women,” said Deer. “She is one of the only outspoken Native women on this issue who is out there talking about the need to repeal it.”
Professor Gonzales believes in the power of the written word. She suggests that submitting editorials to papers such as The Washington Post would help raise awareness about how complex these issues are for Native women.
“The framing of the issue as pro-life v. pro-choice is oversimplified. We need to have a deeper conversation about reproductive justice. We need multiple voices. These discussions are vital and we need to be a part of them,” Gonzales said.
Gonzales believes that the battle will be won on multiple fronts, and there must be more than just one approach.
An uncertain future
A recent op-ed in the New York Times noted that in Romania, where anti-abortion legislation was passed in 1966, maternal mortality due to illegal abortions increased 700 percent; an estimated 10,000 women died from unsafe procedures before the legislation was reversed in 1989.
In the past few months, large swaths of the country have experienced strong, damaging storms and destructive tornadoes and floods have left communities in ruins. The Northeast has endured a long, seemingly endless winter and a prolonged wet, stormy, and sunless spring season. The growing movement to roll back reproductive rights and access to abortion feels much like the swirl of gathering clouds and approaching darkness we have seen in the skies. The proverbial rumble of impending storms stirring on the horizon is growing louder.
The current struggle over women’s reproductive rights is a politically charged, highly contentious one. It is a struggle Native women have known all too well and for far longer than their U.S. female counterparts. But for all women, it appears the shared future is uncertain.
Leslie Logan, Seneca, is a writer and PR consultant that has written for Indian Country Today, the National Museum of the American Indian, Aboriginal Voices and Indigenous Woman. She is the former communications director for the Seneca Nation and the Saint Regis Mohawk Tribe.