Amicus Curiae Brief — Thomas E. Dobbs, State Health Officer of the Mississippi Department of Health, et al., Petitioners v. Jackson Women's Health Organization, et al.
Supreme Court briefSep 17, 2021
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NO. 19-1392
In the
Supreme Court of the United States
THOMAS E. DOBBS, STATE HEALTH OFFICER OF THE
MISSISSIPPI DEPARTMENT OF HEALTH, ET AL.,
Petitioners,
v.
JACKSON WOMEN’S HEALTH ORGANIZATION, ET AL.,
Respondents.
__________________________
On Writ of Certiorari to the United States
Court of Appeals for the Fifth Circuit
BRIEF OF AMICI CURIAE
CECILIA FIRE THUNDER;
NATIONAL INDIGENOUS WOMEN’S RESOURCE CENTER;
THE NATIVE AMERICAN COMMUNITY BOARD;
AND ADDITIONAL ADVOCACY ORGANIZATIONS AND
INDIVIDUALS IN SUPPORT OF RESPONDENTS
LAUREN VAN SCHILFGAARDE
LAEL ECHO-HAWK
COUNSEL OF RECORD
MTHIRTYSIX PLLC
385 CHARLES E. YOUNG DRIVE EAST 700 PENNSYLVANIA AVE. SE
BOX 951476
2ND FL – THE YARD
LOS ANGELES, CA 90095
WASHINGTON, DC 20003
(310) 764-7344
(206) 271-0106
VANSCHILFGAARDE@LAW.UCLA.EDU
LAEL@MTHIRTYSIXPLLC.COM
UNIVERSITY OF CALIFORNIA
LOS ANGELES SCHOOL OF LAW
SEPTEMBER 17, 2021
SUPREME COURT PRESS
COUNSEL FOR AMICI CURIAE
♦
(888) 958-5705
♦
BOSTON, MASSACHUSETTS
i
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ...................................... iii
INTEREST OF THE AMICI CURIAE ....................... 1
SUMMARY OF THE ARGUMENT ........................... 3
ARGUMENT ............................................................... 6
I.
THE TRUST RESPONSIBILITY INCLUDES THE
OBLIGATION TO PROVIDE REPRODUCTIVE
HEALTH CARE TO NATIVE PEOPLE ..................... 6
A. Traditional Native Reproductive Health
Care Included Abortion Care ..................... 6
B. The Trust Responsibility Includes the
Provision of Health Care to Native People.... 8
II. THE FEDERAL GOVERNMENT HAS HISTORICALLY FAILED TO UPHOLD ITS TRUST
RESPONSIBILITY TO PROVIDE REPRODUCTIVE
HEALTH CARE .................................................. 11
A. Federal Reproductive Healthcare Policy
Has Blamed Infant Mortality on the
Native Mother’s Failure to Assimilate..... 11
B. Institutionalized Sterilization and Forced
Contraception Become the Norm ............. 14
III. T HE D ISTRUSTED AND U NDERFUNDED
FEDERAL PROVISION OF HEALTHCARE TO
NATIVE PEOPLES CAUSES HARM AND COMPELS
OUTSOURCING TO PRIVATE PROVIDERS ........... 19
A. Indian Health Service is Detrimentally
Underfunded and Under-Resourced ........ 19
B. Native Communities Experience High
Rates of Maternal and Infant Mortality .. 20
ii
TABLE OF CONTENTS – Continued
Page
C. Native People Suffer the Highest Rates of
Sexual Violence ......................................... 23
D. Native People Face Socioeconomic
Barriers That Are Exacerbated by Lack
of Access to Reproductive Health ............. 27
IV. THE HYDE AMENDMENT DISPROPORTIONATELY
RESTRICTS NATIVE REPRODUCTIVE HEALTH .... 28
V. PREVENTING, INSTEAD OF PROVIDING ACCESS
TO MEANINGFUL REPRODUCTIVE HEALTH
CARE, IS A HUMAN RIGHTS VIOLATION AND A
VIOLATION OF THE TRUST RESPONSIBILITY ...... 31
CONCLUSION.......................................................... 32
APPENDIX OF SIGNATORIES
Main Signatories ................................................ 1a
Organizational Signatories ................................ 3a
Individual Signatories ........................................ 6a
iii
TABLE OF AUTHORITIES
Page
CASES
TABLE OF AUTHORITIES
Cobell v. Norton,
240 F.3d 1081 (D.C. Cir. 2001) .......................... 9
Harris v. McRae,
448 U.S. 297 (1980) ............................................ 30
Lincoln v. Vigil,
508 U.S. 182 (1993) ........................................... 10
Roe v. Wade,
410 U.S. 113 (1973) ............................. 2, 5, 30, 31
Rosebud Sioux v. U.S., et al.,
No. 20-2062 (8th Cir., Aug 25, 2021) ................ 10
United States v. Bryant,
136 S.Ct. 1954 (2016) ........................................ 23
United States v. Jicarilla Apache
Nation, 564 U.S. 162 (2011) .................................. 9
CONSTITUTIONAL PROVISIONS
U.S. Const. Art. I, § 8 .................................................. 8
U.S. Const. Art. VI, cl. 2 ............................................. 8
STATUTES
25 U.S.C. § 13 ............................................................. 9
25 U.S.C. § 1601 ......................................................... 10
25 U.S.C. § 1661 ......................................................... 10
25 U.S.C. § 1676 ........................................................ 29
Pub. L. No. 111-8, §§ 507-08...................................... 29
iv
TABLE OF AUTHORITIES – Continued
Page
JUDICIAL RULES
Sup. Ct. R. 37.6 ........................................................... 1
REGULATIONS
42 C.F.R. § 136.51 ...................................................... 29
42 C.F.R. § 136.54 ...................................................... 29
42 C.F.R. §§ 50.201-50.204 ....................................... 16
TREATIES
Treaty with the Flatheads, Arts. I, V,
Flatheads-U.S., (July 16, 1855) .......................... 8
Treaty with the Klamath, Arts. I, IV,
(Oct. 14, 1864)...................................................... 9
Treaty with the Miami, Arts. 1, 6,
Miami-U.S., (Oct. 23, 1826) ................................ 8
EXECUTIVE ORDER
Exec. Order No. 13898, 84 Fed. Reg. 66,059,
Establishing the Task Force on Missing
and Murdered American Indians and
Alaska Natives, Signed by Pres. Donald J.
Trump (Dec. 2, 2019) ......................................... 23
CONGRESSIONAL DOCUMENTS
Problems That American Indian Families Face
in Raising Their Children: Hearings
Before the Subcomm. on Indian Aff. of the
Comm. on Interior and Insular Aff.,
93d Cong., 2d Sess., 4 (1974) ............................ 13
v
TABLE OF AUTHORITIES – Continued
Page
Use of the Drug, Depo Provera, by the Indian
Health Service, Oversight Hearing Before
the H. Subcomm. on General Oversight and
Investigations of the Committee on
Interior and Insular Aff., 100th Cong. 1
(Aug. 6, 1987)..................................................... 17
OTHER AUTHORITIES
Aaron Cantú,
Shutdown Pummels Native American
Health, SANTA FE REPORTER
(January 7, 2019) ............................................... 21
Allen J. Wilcox, et al.,
Likelihood of Conception with a Single Act
of Intercourse: Providing Benchmark
Rates for Assessment of Post-Coital
Contraceptives, 63 CONTRACEPTION 211
(2001) ................................................................. 25
Andre B. Rosay,
Violence Against American Indian and
Alaska Native Women and Men: 2010
Findings from the National Intimate
Partner and Sexual Violence Survey, Nat’l
Inst. of Justice, Office of Justice
Programs, U.S. Dep’t of Justice (2016) ............. 24
Anna Bernstein and Kelly M. Jones,
The Economic Effects of Abortion Access; A
Review of the Evidence, Center on the
Economics of Reproductive Health,
Institute for Women’s Policy Research
(2019).................................................................. 27
vi
TABLE OF AUTHORITIES – Continued
Page
Ashley Juraska, et al.,
Sexual Assault Services Coverage of Native
American Land, 10 J. OF FORENSIC
NURSING 92 (2014) ............................................. 25
Briana Theobald,
REPRODUCTION ON THE RESERVATION:
PREGNANCY, CHILDBIRTH, AND
COLONIALISM IN THE LONG TWENTIETH
CENTURY (2019).............................................. 7, 15
Bryant Furlow,
Federal Investigation Finds Hospital
Violated Parents’ Rights by Profiling,
Separating Native Mothers and Newborns,
THE NM POLITICAL REPORT
(Aug. 24, 2020) ................................................... 23
Christi A. Grimm,
Instances of IHS Labor and Delivery Care
Not Following National Clinical
Guidelines for Best Practices,
Indian Health Service, OEI-06-19-00190
(Dec. 2020) ......................................................... 21
Christina C. Pallitto, et al.,
Intimate Partner Violence, Abortion, and
Unintended Pregnancy: Results from the
WHO Multi-country Study on Women’s
Health and Domestic Violence. 120(1) INT.
J. GYNECOLOGY & OBSTETRICS 3 (2013) .............. 24
Christina J.J. Cackler, et al.,
Female Sterilization and Poor Mental
Health: Rates and Relatedness among
American Indian and Alaska Native
vii
TABLE OF AUTHORITIES – Continued
Page
Women, 26 WOMEN’S HEALTH ISSUES 168
(2016) ................................................................. 18
Dalton Walker,
Birthing Center Closure: “My Baby and I
Felt Abandoned.”, INDIAN COUNTRY TODAY
(October 23, 2020) .............................................. 21
Daniel Moerman,
NATIVE AMERICAN ETHNOBOTANY (1998) ............ 7
Danielle M. Ely and Anne K. Driscoll,
Infant Mortality in the United States:
2018: Data from the Period Linked/Infant
Death File, 69(7) NATIONAL VITAL
STATISTICS REP. 1 (Jul. 16, 2020) ...................... 21
Dr. Connie Uri,
Statement Prepared for the Jackson
Hearings, September 16, 1974, Costco
Archive, MS 170, Box 34, Folder
034.001.001, Special Collections &
University Archives, University of
California, Riverside........................................... 16
Emily E. Petersen, et al.,
Vital Signs: Pregnancy-Related Deaths,
United States, 2011-2015, and Strategies
for Prevention, 13 States, 2013-2017, 68
MORBIDITY AND MORTALITY WEEKLY REP.
423 (2019) .......................................................... 21
Geoffrey D. Strommer, et al.,
Tribal Sovereign Authority and SelfRegulation of Health Care Services:
The Legal Framework and the Swinomish
viii
TABLE OF AUTHORITIES – Continued
Page
Tribe’s Dental Health Program, 21 J.
HEALTH CARE L. & POL’Y 115 (2018) ................... 8
Jennifer Denetdale,
Chairmen, Presidents, and Princesses:
The Navajo Nation, Gender, and the
Politics of Tradition, WICAZO SA REVIEW 9
(2006) ................................................................. 14
Jonathan A. Gottschall & Tiffany A.
Gottschall, Are Per-Incident RapePregnancy Rates Higher Than PerIncident Consensual Pregnancy Rates,
14 HUMAN NATURE 1 (2003) .............................. 25
Kathleen Basil et al.,
Rape-Related Pregnancy and Association
with Reproductive Coercion in the U.S.
55 AM. J. PRV. MED. 770 (2018) ......................... 25
Kati Schindler, et al.,
Indigenous Women’s Reproductive
Rights The Indian Health Service and Its
Inconsistent Application of the Hyde
Amendment, Native American Women’s
Health Education Resource Center
(Oct. 2002)...................................................... 7, 30
Kim Anderson,
A RECOGNITION OF BEING:
RECONSTRUCTING NATIVE WOMANHOOD
(2000) ................................................................. 13
M. Antonia Briggs, et al.,
Understanding Why Women Seek
Abortions in the U.S., 13 BMC WOMEN’S
HEALTH 29 (2013) .............................................. 27
ix
TABLE OF AUTHORITIES – Continued
Page
Matthew Adler,
What Should We Spend to Save Lives in a
Pandemic? A Critique of the Value of
Statistical Life. DUKE LAW SCHOOL PUBLIC
LAW & LEGAL THEORY SERIES No. 2020-40
(2020) ................................................................. 22
Megan A. Cahn, et al.,
Use of Sexual Health Services Among
American Indian and Alaska Native
Women. Women Health. 59(9) NATIONAL
LIBRARY OF MEDICINE 953 (2019) ...................... 28
Native American Women Uncover Norplant
Abuses, MS. MAGAZINE, 69 (Sept. 1993) ............... 17
Patrisia Gonzales,
RED MEDICINE: TRADITIONAL INDIGENOUS
RITES OF BIRTHING AND HEALING (2012) ............. 6
Rukmini Callimachi,
Lost Lives, Lost Culture: The Forgotten
History of Indigenous Boarding Schools,
NY TIMES (Jul. 19, 2021) ................................... 12
Sally J. Torpy,
Native American Women and Coerced
Sterilization: On the Trail of Tears in the
1970s, 24.2 AM. INDIAN CULTURE AND RES.
J. 1 (2000) .......................................................... 12
Sarah Miller, et al.,
The Economic Consequences of Being
Denied an Abortion, NBER WORKING
PAPERS 26662, National Bureau of
Economic Research, Inc. (2020) ........................ 27
x
TABLE OF AUTHORITIES – Continued
Page
Shaye Beverly Arnold,
Reproductive Rights Denied: The Hyde
Amendment and Access to Abortion for
Native American Women Using Indian
Health Service Facilities, 104(1) AM. J PUB.
HEALTH 1892 (2014) ........................................... 26
Shira Rutman, et al.,
Reproductive Health and Sexual Violence
Among Urban American Indian and
Alaska Native Young Women: Select
Findings from the National Survey of
Family Growth, 2 MATERNAL CHILD
HEALTH J. 347 (Dec. 16, 2012) .................... 18, 20
The Native American Women’s
Health Education Resource Center,
Indigenous Women’s Dialogue:
Roundtable Report on the Accessibility of
Plan B As An Over the Counter (OTC)
within Indian Health Service, Native
American Community Board (2012) ..... 25, 26, 31
U.S. Census Bureau,
Poverty Status in the Past 12 Months by
Sex by Age, 2013-2017 American
Community Survey 5-Year Estimates,
Table B17001C and B17001 (2017) ................... 27
U.S. Comm. on Civil Rights,
Broken Promises:Briefing Report
(Dec. 2018) .......................................................... 20
U.S. Department of Indian Health Services,
INDIAN HEALTH MANUAL ................................... 29
xi
TABLE OF AUTHORITIES – Continued
Page
U.S. Department of Indian Health Services,
The Indian Health Program of the U.S.
Public Health Service (U.S. Government
Printing Office, 1978) ........................................ 16
U.S. Department of Indian Health Services,
Maternal Mortality and Morbidity in
Indian Country, Fact Sheet (2018) .................... 22
U.S. Department of the Interior,
Secretary Haaland Creates New Missing
& Murdered Unit to Pursue Justice for
Missing and Murdered American Indians
and Alaska Natives (April 1, 2021) ................... 23
U.S. Gov’t Accountability Office,
Indian Health Service: Agency Faces
Ongoing Challenges Filling Provider
Vacancies, GAO-18-580 (Aug. 2018) .................. 20
U.S. Gov’t Accountability Office,
Indian Health Service: Spending Levels
and Characteristics of IHS and Three
Other Federal Health Care Programs,
GAO-19-74R (Dec. 10, 2018) ............................ 20
U.S. Gov’t Accountability Office,
Indian Health Service Provider
Misconduct, GAO-21-97 (Dec. 2020) ................. 20
U.S. Gov’t Accountability Office, Investigation
of Allegations Concerning Indian Health
Service, HRD-77-3 (Nov. 4, 1976). .................... 16
Urban Indian Health Institute,
Community Health Profile: National
Aggregate of Urban Indian Health
Program Service Areas (Oct. 2016) .......... 21, 24
1
INTEREST OF THE AMICI CURIAE
Amici curiae1 are organizations and individuals
committed to ensuring that Native women in the
United States and Territories have access to comprehensive reproductive health services, Amici have a
unique perspective on the complicated interplay of
federal Indian law and access to abortion services in
both urban and reservation settings. Amici represent a
variety of organizations and individuals who support
access to comprehensive reproductive health care for
Native women and birthing people. Amici organizations
are committed to the full panoply of reproductive rights,
including the right to determine if, when, and how to
have a family.
The leading signatory, CECILIA FIRE THUNDER
(Oglala Lakota), is a national expert on access to reproductive health services for Native women. Ms. Fire
Thunder is renowned as an advocate for wellness and
women’s issues and for her unique way of reaching
the hearts of communities and people. She continues
to fight for the rights of Native Americans and for
access to domestic violence and family planning support
services for all women, stating “As a woman, it’s my job
to support women. It’s my job to support my sisters.”
1 A full list of amici curiae is appended to this brief. Pursuant to
Rule 37.6, Amici certify that no counsel for a party authored this
brief, in whole or in part, and that no person other than amici or
their counsel have made any monetary contributions intended to
fund the preparation or submission of this brief. The parties have
granted blanket consent for the filing of amicus curiae briefs.
2
The second leading signatory, the N ATIONAL
INDIGENOUS WOMEN’S RESOURCE CENTER (NIWRC), is
a Native nonprofit organization whose mission is to
provide national leadership to end violence against
American Indian, Alaska Native and Native Hawaiian
women by supporting culturally grounded, grassroots
advocacy. NIWRC provides national leadership in
ending gender-based violence in tribal communities
by lifting the collective voices of grassroots advocates
and offering culturally grounded resources, technical
assistance and training, and policy development to
strengthen tribal sovereignty. NIWRC staff and board
of directors consist of Native women from Tribes
throughout the United States. Collectively, these
women have extensive experience in tribal courts,
tribal governmental processes, and programmatic
and educational work to end violence against Native
women and children, including domestic violence and
sexual assault. Given the outcome of Dobbs v. Jackson
Women’s Health Organization could result in an
overturn of Roe v. Wade, this case decision poses a
threat to Indigenous womens’ body sovereignty that
would substantially hurt the reproductive rights and
health of Native women, girls, and birthing people.
The third leading signatory, the NATIVE AMERICAN
COMMUNITY BOARD (NACB), an organization that
preserves the Dakota culture, advocates for Native
women’s rights and reproductive health services from
the Indian Health Service and advocates for services
and justices for Native women and children who are
survivors of violence. Indigenous women have the
right to live free from violence and to address the
Reproductive Justice issues that we face through the
3
process of self-determination in order to respect and
restore our Indigenous lifeways.
This brief is joined by 32 additional organizations
and 226 individuals that share a commitment to
ensuring that Native women have access to comprehensive reproductive care. The depth of the Amici’s
experiencing in working with Native people seeking
abortion renders them uniquely positioned to offer
their views on the unconstitutional Mississippi abortion
ban.
SUMMARY OF THE ARGUMENT
The federal government has a historic trust relationship with its Native2 Peoples that is now embedded
in the Constitution of the United States, treaties
between the United States and tribes, and in numerous
federal statutes. The Trust Relationship manifests in
a number of obligations, including the obligation to provide meaningful access to all aspects of reproductive
health care, which includes abortion services. This
positive obligation uniquely positions Native women
vis-á-vis the federal government. Unfortunately, the
dereliction of this federal obligation has resulted in a
2 The terms “Native,” “Native American,” “Indian,” “Indigenous,”
and “American Indian/Alaska Native (AI/AN)” are used interchangeably to inclusively refer to the Indigenous peoples under
the jurisdiction of the United States, including those within the
lower-48 states, Alaska Natives, Native Hawaiians, and the
Indigenous peoples located within U.S. territories. Native Peoples
include federally recognized tribes, which have a nation-to-nation
trust relationship with the U.S. federal government.
4
de facto delegation to private abortion providers subject to state laws. The proposed Mississippi 15-week
abortion ban and any subsequent state abortions
bans, will deny Native women the right to federallymandated health care despite this federal obligation.
Just as state governments lack authority over the
decisions made by a federally recognized tribe, no
state should have the authority to determine the
reproductive decisions of individual Native people.
The federal provision of health care has accompanied explicit federal policies to assimilate Native
people out of existence. Traditional family planning
and birthing practices were historically suppressed,
while the clinics and hospitals intended to replace
those traditional supports were either never built, were
poorly outfitted, or have subsequently closed. Many
Native parents suffered the pain of the boarding school
era, wherein Native children were taken away from
their home communities to be raised by strangers.
Reaching its peak in the mid-20th century, the Indian
Health Service (IHS) has been found to have sterilized
at least 3,406 Native women, many without clear,
documented consent. The cumulative result is that far
from meaningful, self-determined reproductive health
care, federal health care has instead largely eroded
Native reproductive autonomy.
Petitioners raise a peculiar argument–namely,
that American women and girls have succeeded in
every avenue of life in the United States and that
access to birth control is quick, easy, and free,
suggesting that abortions are no longer necessary.
Brief for Petitioner at 29-30, Dobbs, et al., v. Jackson
Women’s Health Organization, et al. (July 22, 2021)
(No. 19-1392). This could not be further from the truth
5
for most Native women in the United States regardless
of whether they live in rural or urban areas. In fact,
Native people are less likely to receive any kind of
sexual health service compared to white women. More
troubling still, this gap in care impacts a population
exposed to disproportionate rates of sexual violence.
Native people likely suffer the highest per capita rates
of unwanted pregnancies as a result of assault or
coercion. Yet Native people have the least access to
emergency contraception and abortion services.
Even in urban settings with IHS facilities, restrictions on the use of federal funding make abortion
inaccessible for many Native women. The Hyde Amendment presently restricts all federal dollars, including all
funds intended to fulfill the trust obligation to provide
health care to Native people, from funding abortion
services except in extremely rare circumstances. For
Native people, this has resulted in a total prevention on
access to abortion care since 1976, despite the constitutional guarantee of access enshrined in Roe v. Wade,
410 U.S. 113 (1973), and a further shortcoming of
federal reproductive health care. Policies restricting
access to abortion places Native women at greater
risk of violence and fatal outcomes illustrated by
current disproportionate rates of maternal and infant
mortality.
The federal government’s meager steps to address
the epidemic of sexual violence in Indian Country
coupled with the restrictions enshrined in the Hyde
Amendment and the chronic under-funding of IHS,
constitute a policy of obstructing Native American
women’s access to comprehensive reproductive health
care. The right of Native women to be free from sexual
assault and have meaningful access to abortion must
6
be viewed through the lens of the federal government’s
trust relationship with Native people. The federal
government’s failures are a re-victimization and a
reviolation of Native American women’s bodies.
In addition to being a human rights violation, a
state’s categorical prohibition of all abortions within
their jurisdiction is also the death knell of the lone
Native reproductive health care option relied upon by
the federal government to fill the gap left by the Hyde
Amendment. Because of the federal government’s
systematic failure to provide their treaty-mandated
health care to Native people, this proposed extension
of state despotism is not just a constitutional violation,
it is also a breach of federal trust obligations.
ARGUMENT
I.
THE TRUST RESPONSIBILITY INCLUDES THE
OBLIGATION TO PROVIDE REPRODUCTIVE HEALTH
CARE TO NATIVE PEOPLE.
A. Traditional Native Reproductive Health
Care Included Abortion Care.
Native Peoples within the United States comprise
hundreds of tribal nations, cultures, languages, and
health care practices. Yet, common threads of
reproductive traditions, rituals, practices, and lessons
emerge.3 Native identity is inextricably linked with
kinship, shaped by relations and the obligations owed
3 See generally Patrisia Gonzales, RED MEDICINE: TRADITIONAL
INDIGENOUS RITES OF BIRTHING AND HEALING (2012).
7
to each other because of these relations. Birth control,
abortion, prenatal care, birth, and maternal care all
have rich, contextualized histories and roles within
many tribal communities. The provision of this care
was frequently overseen by female relations, guided
by the autonomy of the individual and the reciprocal
obligations of and to the community. They would
often practice abstinence during their ovulation period to avoid pregnancies. 4 Women relations and
sometimes midwives would accompany and support
laboring mothers. Child-rearing duties are often shared
by extended family members beyond the nuclearfamily unit. The reasons to terminate an unwanted
pregnancy could be vastly varied, and would include
concerns about limited food supplies or arduous
journeys during inclement weather. In this event,
Native women knew which plants or medicinal herbs
to ingest to induce an abortion or serve as contraception.5
Native Peoples approached reproductive health
with intention, rooting this care in the reciprocal
obligations that Native people owe to each other and
the individual’s autonomy to be healthy. Meaningful
Indigenous reproductive health care, therefore, is
4 Kati Schindler, et al., Indigenous Women’s Reproductive Rights
The Indian Health Service and Its Inconsistent Application of the
Hyde Amendment, Native American Women’s Health Education
Resource Center (Oct. 2002).
5 Briana Theobald, R EPRODUCTION ON THE R ESERVATION :
P REGNANCY , C HILDBIRTH , AND C OLONIALISM IN THE L ONG
TWENTIETH CENTURY, 30 (2019), citing Daniel Moerman, NATIVE
AMERICAN ETHNOBOTANY, 656, 765 (1998).
8
that which is responsive to the needs of the entire
community, including the individual.
B. The Trust Responsibility Includes the
Provision of Health Care to Native People.
The federal government has both a trust responsibility and legal obligations to provide comprehensive,
high-quality, and culturally competent health care to
the Native Peoples of the United States.6 This includes
the provision of reproductive health care services,
that incorporates access to family planning services
such as abortion services.
The origins of federal health care programs for
Natives can be traced to treaty promises. Treaties
are the “supreme Law of the Land” and cannot be
disregarded by any state government, including Mississippi. U.S. CONST. art. I, § 8 and art. VI, cl. 2. In
many treaties, the United States agreed to take tribes
under its “protection” and to provide annuities, supplies,
and various health and educational services in exchange
for settlement rights to vast quantities of land and
commitments of peace.7 Over time, these treaty obligations evolved into the federal trust responsibility,
6 See Geoffrey D. Strommer, et al., Tribal Sovereign Authority
and Self-Regulation of Health Care Services: The Legal Framework
and the Swinomish Tribe’s Dental Health Program, 21 J. HEALTH
CARE L. & POL’Y 115, 116-17 (2018).
7 See, e.g., Treaty with the Miami, arts. 1, 6, Miami-U.S., Oct. 23,
1826, 7 Stat. 300, 300–01 (“The United States agree to appropriate . . . for the support of poor infirm persons of the Miami
tribe . . . .”); Treaty with the Ottawas and Chippewas, arts. 1, 4,
Mar. 28, 1836, 7 Stat. 491, 491–92 (promising “[t]hree hundred
dollars per annum for vaccine matter, medicines, and the services
of physicians, to be continued while the Indians remain on their
reservations.”); Treaty with the Flatheads, etc., arts. I, V, Flatheads-
9
reflected in judicial decisions, Acts of Congress, Executive Orders, and other policies that acknowledge the
special status of Indian tribes within the federal system
and establish a range of programs and services. See,
e.g., Cobell v. Norton, 240 F.3d 1081, 1086 (D.C. Cir.
2001). The Trust Responsibility to Native Peoples is
a fiduciary duty, arising not because Native people
cannot care for themselves but because the nature and
history of the relationship between the federal government and Indian tribes created certain ongoing obligations. See, e.g., U.S. Dep’t of the Interior, Secretarial
Order No. 3335, Reaffirmation of the Federal Trust
Responsibility to Federally Recognized Tribes and Individual Indian Beneficiaries (August 20, 2014). In 2011,
this Court reaffirmed the federal-tribal trust responsibility, noting the federal government “has charged
itself with moral obligations of the highest responsibility and trust,’ . . . . obligations ‘to the fulfillment of
which the national honor has been committed. . . . ’”
United States v. Jicarilla Apache Nation, 564 U.S. 162,
176 (2011) (internal citations omitted).
In 1921, the Synder Act codified the federal obligation to provide Native people health care “for the
benefit, care, and assistance of the Indians throughout
the United States . . . .” 24 Stat. 208 (codified as 25
U.S.C. § 13). In 1976, Congress passed the Indian
U.S., July 16, 1855, 12 Stat. 975, 975–77 (promising to erect a
hospital, among other things, “keeping the same in repair, and
provided with the necessary medicines and furniture, and to
employ a physician” for a period of 20 years); and Treaty with the
Klamath, etc., arts. I, IV, Oct. 14, 1864, 16 Stat. 707, 707–09
(promising to erect and maintain a school and hospital on the
reservation for a period of twenty years).
10
Health Care Improvement Act (IHCIA), which established the Indian Health Service (IHS) and recognized that a “major national goal of the United
States is to provide the quantity and quality of
health services which will permit the health status of
Indians to be raised to the highest possible level.”
Pub. L. No. 94-437, §§ 2, 601, 90 Stat. 1400 (codified as
amended at 25 U.S.C. §§ 1601, 1661). In permanently
reauthorizing the IHCIA in 2010, Congress declared
that “Federal health services to maintain and improve
the health of the Indians are consonant with and
required by the Federal Government’s historical and
unique legal relationship with, and resulting responsibility to, the American Indian people.” Patient Protection and Affordable Care Act, Pub. L. No. 111-148,
§ 10221(a), 124 Stat. 119, 935–36 (2010) (codified as
amended at 25 U.S.C. § 1601 et seq. (Supp. IV 2016)).
Also see Lincoln v. Vigil, 508 U.S. 182, 194 (1993) (acknowledging IHS’s “statutory mandate to provide health
care to Indian people.”). The obligation to provide
competent, physician-led healthcare, a duty created
by a treaty and reinforced by the Snyder Act and the
IHCIA, was most recently upheld by the Eighth Circuit
in Rosebud Sioux v. U.S., et al., No. 20-2062 (8th Cir.,
August 25, 2021).
Critically, meaningful health care is not just
competent care provided in a sufficiently-funded
system, but is also a system in which Native people
enjoy autonomy and are treated with dignity. Reinforcing the obligation to provide meaningful health care
under U.S. law, Article 24 of the United Nations Declaration on the Rights of Indigenous Peoples states
that “Indigenous individuals have an equal right to
the enjoyment of the highest attainable standard of
11
physical and mental health. [Nation] States shall take
the necessary steps with a view to achieving progressively the full realization of this right.” G.A. Res.
61/295, United Nations Declaration on the Rights of
Indigenous Peoples, Art. 24 (Sept. 13, 2007). Article 23
contextualizes this nation state obligation, declaring
that “Indigenous [P]eoples have the right to determine
and develop priorities and strategies . . . [i]n particular . . . to be actively involved in developing and
determining health . . . programes. . . .” Id. at Art. 23.
Under international law, particularly in light of
historic settler colonial policies that have suppressed
Native autonomy, Native Peoples must be able to selfdetermine their health care.
The Trust Responsibility is a bedrock principle of
modern federal Indian policy and is reflected and reinforced in international law. Yet its necessary
companion—retained tribal and individual self-determination, has been suppressed.
II. THE FEDERAL GOVERNMENT HAS HISTORICALLY
FAILED TO UPHOLD ITS TRUST RESPONSIBILITY
TO PROVIDE REPRODUCTIVE HEALTH CARE.
A. Federal Reproductive Healthcare Policy
Has Blamed Infant Mortality on the
Native Mother’s Failure to Assimilate.
In the 20th century, federal Indian policy caused
disruption to the traditional lifeways of many Native
Peoples, including their reproductive health care.
Mothers and infants proved especially vulnerable,
particularly to malnutrition and the spread of disease.
One government official estimated in 1916 that approximately three-fifths of Native infants died before age
five. U.S., Off. of Indian Aff., Annual Report of the
12
Commissioner of Indian Affairs (Jun 30, 1916). Numerous federal policies sought to address the staggering
rates of infant and maternal morbidity and mortality,
through continued forced assimilation instead of
the rebuilding of Native systems. Turn-of-the-century
policies like the criminalization of traditional healers,
invasive scrutiny of Indigenous concepts of gender,
non-nuclear family structures and kinship, and the
forced removal of children to often remote boarding
schools, and later adoption, . . . effectively drained
many tribal communities of their traditional knowledge
and the future receptacles for that knowledge, This
disrupted cultural practices and knowledge while
institutionalizing federal practices and values. See
Regulations of Indian Courts, in Rep. of the Comm’r
of Indian Aff., Dep’t of Indian Aff., 4(c) at 29 (Aug. 27,
1892) (“Any Indian who shall engage in the practices
of so-called medicine men, or who shall. . . keep the
Indians from . . . adopting and following civilized habits
and pursuits . . . or shall . . . prevent Indians from
abandoning their barbarous rites and customs, shall
be deemed to be guilty . . . ”).
Boarding schools wreaked particular damage on
the cultural fabric of Native people. See Rukmini
Callimachi, Lost Lives, Lost Culture: The Forgotten
History of Indigenous Boarding Schools, NY TIMES
(Jul. 19, 2021). Statistics reflecting the high number
of children placed in boarding schools in a 1971
school census conducted by the Bureau of Indian
Affairs (BIA) were staggering. Approximately 35,000
children lived in such facilities rather than at home.
Sally J. Torpy, Native American Women and Coerced
Sterilization: On the Trail of Tears in the 1970s, 24.2
AM. INDIAN CULTURE AND RES. J. 1, 14 (2000).
13
Policies to assimilate Native children later
transitioned from boarding school to adoption. Between
1958 and 1967, the Children’s Bureau, the BIA, and
the Child Welfare League of America facilitated the
Indian Adoption Project. Press Release, U.S. Dep’t of
the Interior, Bureau of Indian Affs., Indian Adoption
Project Increases Momentum (Apr. 18, 1967). Native
children were identified and tagged for adoption,
cultivating an adoption market specifically for Native
children. Id. (“It was a record year for the project
. . . Temporarily, because of increased interest, there
are more prospective parents than there are Indian
children referred to the project for adoption.”).
During this time, child welfare systems were shockingly
successful in removing children from their parents
and cultures. Problems That American Indian Families
Face in Raising Their Children: Hearings Before the
Subcomm. on Indian Aff. of the Comm. on Interior and
Insular Aff., 93d Cong., 2d Sess., 4 (1974) (reporting
rates of roughly 25 to 35 percent of Native young
people that had been separated from their families).
These removals were a form of cultural genocide.
G.A. Res. 61/295, Art. 7 (Sept. 13, 2007) (“Indigenous
peoples have the collective right to . . .not be subjected
to any act of genocide . . . including forcibly removing
children of the group to another group.”).
The federal government filled the void of lost
Native reproductive health care and the traumatic
removal of children with policies aimed at remedying
the perceived inadequacies of Native mothers.8 The
8 Theobald, supra note 5, at 30, citing Kim Anderson, A
RECOGNITION OF BEING: RECONSTRUCTING NATIVE WOMANHOOD
(2000) and Jennifer Denetdale, Chairmen, Presidents, and
14
field matron program, established by the Office of
Indian Affairs in 1890, was charged with imparting
lessons in “civilized” domesticity and Victorian gender
norms. Infant mortality was frequently seen as the
product of individual Native mother ignorance rather
than the systemic issues of economic, environmental,
nutritional, or cultural loss contributing to worrisome
reproductive health.
The simplest rules of motherhood applied
under intelligent and friendly direction would
save most of the Indian babies who annual
fill untimely graves. . . . [G]ood results, if
obtained, will scarcely continue unless the
Indian parents exchange indolence for industry and are awakened to the use and beauty
of personal and environment cleanliness.
U.S., Off. of Indian Aff., Annual Report, 7-8 (Jun 30,
1916).
B. Institutionalized Sterilization and Forced
Contraception Become the Norm.
The perceptions of inherent Native deficiencies
coupled with a general move towards the medicalization
of reproductive health care, reinforced a federal sense
that Native reproduction needed to be medically
“controlled.” This was most disturbingly realized in
the institutionalized sterilization of Native Peoples,
many without meaningful consent. A review of Indian
service social worker reports in the 1930s and early
1940s suggests that some social workers became
actively involved in the sterilization of Native women,
Princesses: The Navajo Nation, Gender, and the Politics of Tradition,
WICAZO SA REVIEW 9 (2006).
15
and less, frequently, men. Briana Theobald, REPRODUCTION ON THE RESERVATION: PREGNANCY, C HILD BIRTH , AND C OLONIALISM IN THE L ONG T WENTIETH
CENTURY, 41 (2019), analyzing Social Workers’ reports,
Records of the Welfare Branch, National Archives
and Records Administration, Washington, D.C., Record
Group 75. IHS family planning services evidence fears
of global overpopulation and an expanding welfare
state. Health Serv. Div., Family Planning and the
American Indian, Westinghouse Learning Corporation
(1971). Federal employees, including many physicians,
held the belief that Native parents were inherently
deficient and dysfunctional. Others believed it was
best if Native family size shrunk. Figure 1 displays
federal efforts to encourage lower birth rates, in this
case by suggesting that smaller families could have
more horses, in an absurd and racist presentation.
FIGURE 1: Planning Your Family
pamphlet image, produced by Dep’t of Health,
Education, and Welfare (1974).
16
By 1976, 97.8 percent of Native births occurred in
IHS facilities. U.S. Dep’t of Health, Education, and
Welfare, Health Service Administration, Indian Health
Service, The Indian Health Program of the U.S. Public
Health Service 19 (U.S. Government Printing Office,
1978). Meanwhile, the U.S. Government Accountability
Office (GAO) found that between 1973 and 1976, at
just four IHS regions (Aberdeen, Albuquerque, Oklahoma City, and Phoenix) 3,406 American Indian women
were sterilized, most of which took place during birth
and other gynecological procedures. U.S. Gov’t Accountability Office, Investigation of Allegations Concerning
Indian Health Service, HRD-77-3, 18 (Nov. 4, 1976).
Of the 3,406 sterilizations, 3,001 were of childbearing
age, or 5.1 percent of the female childbearing age population. Id. Moreover, the GAO investigation revealed
significant “weaknesses” in obtaining patient consent
for these sterilizations. Id. at 19. The GAO found 36
women under age 21 that had been forcibly sterilized
during this period despite a court-ordered moratorium
on sterilizations of women younger than 21. Id. at 21.
42 C.F.R. 50.201-50.204 (Apr. 18, 1974). This limited
examination of four facilities over a forty-six month
period correlates with anecdotal reports of covert and
coerced sterilizations of Native women across the
country. See e.g. Dr. Connie Uri, Statement Prepared
for the Jackson Hearings, September 16, 1974, Costco
Archive, MS 170, Box 34, Folder 034.001.001, Special
Collections & University Archives, University of
California, Riverside (in which Dr. Uri testifies to have
found that one of every four women who gave birth at
a Claremore, Oklahoma IHS facility had been subsequently sterilized).
17
In addition to coerced sterilizations, IHS physicians
started prescribing long-acting reversible contraception
(LARC), like injections and implants, with increasing
frequency despite health concerns. In fact, IHS physicians prescribed Depo-Provera birth control injections
in the 1970s before the FDA approved it for use as
birth control. Use of the Drug, Depo Provera, by the
Indian Health Service, Oversight Hearing Before the
H. Subcomm. on General Oversight and Investigations
of the Committee on Interior and Insular Aff., 100th
Cong. 1 (Aug. 6, 1987). Depo is associated with an
increased rate of diabetes, obesity, and depression—
health conditions that are already elevated in Native
people, as well as long-term fertility problems (even
after the shots are stopped). Birth control implants,
such as Norplant, were over prescribed in the 1990s.
Native American Women’s Health Education Resource
Center, Native American Women Uncover Norplant
Abuses, Ms. Magazine, 69 (Sept. 1993). In the 1980s,
the House of Representatives investigated allegations
that Native women were being injected with Depo
without their informed consent. The Navajo Nation
Attorney General sent a letter to the local IHS area
critiquing their consent form. “This in a sense smacks
of chemical sterilization as opposed to surgical (illegal)
sterilization.” Oversight Hearing, 100th Cong. 1 (memorandum to file of Dec. 13, 1985, from Navajo attorney
re IHS prescription of depo provera). Ultimately, the
IHS Director admitted to the House leadership that
their consent forms were deficient. Id. As of 2012,
Native women ages 15-24 are still more likely to be
on LARC than other women their age. Shira Rutman,
et al., Reproductive Health and Sexual Violence Among
Urban American Indian and Alaska Native Young
Women: Select Findings from the National Survey of
18
Family Growth, 2 MATERNAL CHILD HEALTH J. 347-52
(Dec. 16, 2012).
In April 2021, IHS released a formulary brief
indicating that it still regards LARC to be an effective
way to prevent pregnancies, including for adolescents.
Indian Health Service, Formulary Brief: Long Acting
Reversible Contraception (April 2021). The brief advocates that LARC should be offered in the immediate
post-partum and immediate post-abortion settings.
Id. (emphasis added). This guidance does not provide
patients, particularly adolescents, the opportunity to
weigh the pros and cons of LARC nor does it discuss
the need to obtain “informed consent,” despite explicit
past concerns over the nature of consent and family
planning services. Given the historical context of
LARC in IHS facilities, this formulary brief suggests
that, even in 2021, IHS goals are to reduce the number
of Native pregnancies absent meaningful consent.
Even today, sterilization continues to play a
significant role in the lives of Native people. A 2015
study found that nearly 25 percent of Native women
reported (purportedly consensual) female sterilization,
the highest rate in the country. Christina J.J. Cackler,
et al., Female Sterilization and Poor Mental Health:
Rates and Relatedness among American Indian and
Alaska Native Women, 26 WOMEN’S HEALTH ISSUES
168, 172 (2016). Research suggests that the memory
and historical context of forced sterilization may play
a role in mental health challenges faced by Native
people after sterilization. Id. Abortion services, like
sterilization and long-acting reversible contraception,
are reproductive health care that require respect for
the recipient’s bodily autonomy and their ability to
meaningfully consent. Such reproductive health care
19
must be offered free from paternalistic goals to control
and “save” Native people, by making choices on their
behalf. The failure to provide such robust and selfdetermined care has resulted in a legacy of distrust
and poor health outcomes.
III. THE DISTRUSTED AND UNDERFUNDED FEDERAL
PROVISION OF HEALTHCARE TO NATIVE PEOPLES
CAUSES HARM AND COMPELS OUTSOURCING TO
PRIVATE PROVIDERS.
As a result of a targeted control over Native
reproduction, coupled with woefully underfunded health
care, Native women experience disproportionately
poor health outcomes, including high rates of maternal
and infant mortality and morbidity. The federal government’s failure to provide comprehensive reproductive
health care, including abortion care, to Native communities forces Native women to seek such care from
private providers. Petitioner’s 15-week ban not only
violates decades of binding precedent, but also
undermines the federal government’s treaty obligations
to Native communities.
A. Indian Health Service is Detrimentally
Underfunded and Under-Resourced.
The suppression of traditional healthcare systems
and explicit efforts to control and assimilate Native
Peoples have been coupled with anemic support for
the federal-mandated IHS. Towards mid-century, reproductive health needs were increasingly diverted from
in-home providers to IHS hospitals. Unfortunately,
these federally preferred hospitals either never came
to fruition in many tribal communities, or were
woefully underfunded.
20
Today, IHS continues to be grossly underfunded
and understaffed. U.S. Gov’t Accountability Office,
Indian Health Service: Spending Levels and Characteristics of IHS and Three Other Federal Health Care
Programs, GAO-19-74R (Dec. 10, 2018) (comparing
funding levels between IHS, the Veterans Health
Administration, Medicare, and Medicaid). (noting that
in 2016, IHS health care expenditures per person were
only $2,834, compared to $9,990 per person for federal health care spending nationwide); Also see U.S.
Comm. on Civil Rights, Broken Promises: Briefing
Report, 1 (Dec. 2018) and U.S. Gov’t Accountability
Office, Indian Health Service: Agency Faces Ongoing
Challenges Filling Provider Vacancies, GAO-18-580
(Aug. 2018) (finding an overall 25 percent IHS vacancy
rate for providers). IHS has also been found to have
provided substandard, and even harmful care. As
recently as 2020, the IHS was found to have limited
ability to oversee provider misconduct and substandard
performance. U.S. Gov’t Accountability Office, Indian
Health Service Provider Misconduct, GAO-21-97, 26
(Dec. 2020).
B. Native Communities Experience High
Rates of Maternal and Infant Mortality.
As the 21st century begins, the infant and maternal mortality rates of Natives is still disastrously
high. Maternal mortality rates from 2016 to 2018
among Native women was 31.4 deaths per 100,000
live births, 1.2 times the rate for non-Hispanic white
(NHW) women (25.8). Rutman, at 347-52. According
to the CDC, between 2011 and 2015 American Indian
and Alaska Native (AI/AN) women had the secondhighest rate of pregnancy-related death, with 32.5
deaths per 100,000 women, 2.5 times the rate that
21
White women experience. Emily E. Petersen, et al.,
Vital Signs: Pregnancy-Related Deaths, United States,
2011-2015, and Strategies for Prevention, 13 States,
2013-2017, 68 MORBIDITY AND MORTALITY WEEKLY REP.
423 (2019). Also see Urban Indian Health Institute,
Community Health Profile: National Aggregate of
Urban Indian Health Program Service Areas, 37 (Oct.
2016). Native infant mortality rate is also alarmingly high. In 2018, the AI/AN infant mortality rate
was 8.15 deaths per 100,000 live births, 1.8 times the
rate for NHW women (4.63). Danielle M. Ely and
Anne K. Driscoll, Infant Mortality in the United States:
2018: Data from the Period Linked/Infant Death File,
69(7) NATIONAL VITAL STATISTICS REP. 1, 4 (Jul. 16,
2020).
In 2020, the HHS Office of Inspector General
audited a sample of 48 IHS labor and delivery patients
and found that 56 percent received care that did not
follow national clinical guidelines, with a quarter of
those patients experiencing harm as a result. The
Report recommends that IHS undertake a comprehensive assessment of its labor and delivery practices. Christi A. Grimm, Instances of IHS Labor and
Delivery Care Not Following National Clinical
Guidelines for Best Practices, OEI-06-19-00190, 9-10,
16 (Dec. 2020). In recent years, IHS hospitals have
reduced or eliminated obstetric services, forcing
women to drive up to two hours to give birth. See
Dalton Walker, Birthing Center Closure: “My Baby
and I Felt Abandoned.”, INDIAN COUNTRY TODAY (October 23, 2020) and Aaron Cantú, Shutdown Pummels
Native American Health, SANTA FE REPORTER (January 7, 2019). Whereas a significant majority of Native
births took place in IHS facilities in the 1970s, by
22
2018, over 90 percent of Native births occurred outside
of IHS facilities. Indian Health Service, Maternal
Mortality and Morbidity in Indian Country, Fact
Sheet, U.S. Dep’t of Health and Human Serv. (2018).
As the availability of federal reproductive health care
dwindles, Native people are forced to travel greater
distances and increasingly rely on non-federal providers.
The lack of access to comprehensive women’s
health care is life-threatening to Native women,
trauma-and poverty-inducing for families and communities, and costly for economies and health systems. Loss
of life due to pregnancy in particular initiates a series
of consequences for families, communities, and society
at large. AI/AN women lost 2,488 years of life due to
maternal mortality from 2016-2018. Centers for
Disease Control and Prevention, National Vital
Statistics System (2019). This equates to an estimated
cost of lost economic productivity of more than $600
million. Matthew Adler, What Should We Spend to
Save Lives in a Pandemic? A Critique of the Value of
Statistical Life. DUKE LAW S CHOOL PUBLIC LAW &
LEGAL THEORY SERIES No. 2020-40 (2020). The effects
of premature death are, of course, far more reaching
for families, communities, and tribes suffering from
grief. Abortion restrictions and consequentially reducing access to women’s health care initiates a ripple
effect in the lives of Native women and those surrounding them, creating substantial economic losses.
Maternal and infant mortality rates are but one
metric for understanding maternal and infant health.
Atop a foundation of sub-standard care coupled with
disturbing efforts to control Native reproduction and
birth, Native reproductive care has essentially been
23
outsourced away from IHS. Moreover, some healthcare
providers are not competent in serving the needs of
Native women, or even behaving decently. See Bryant
Furlow, Federal Investigation Finds Hospital Violated
Parents’ Rights by Profiling, Separating Native Mothers
and Newborns, THE NM POLITICAL REPORT (Aug. 24,
2020). Abortion clinics provide a wide array of reproductive health care services, including preventative
screenings and education, infertility treatment, contraception counseling, well-woman exams, and hormone
therapy. Increases in abortion restrictions ultimately
leads to the closure of women’s health clinics, a vital
source of health care for many women, including
increasingly Native women, further increasing the risk of
even higher rates of Native maternal and infant
mortality.
C. Native People Suffer the Highest Rates of
Sexual Violence.
As acknowledged by this Court in United States
v. Bryant, 136 S.Ct. 1954, 1959 (2016), Native people
suffer the highest rates of violent victimization in the
United States. Indeed, all three branches of the federal government have taken action in an attempt to
resolve this crisis.9 A 2016 U.S. Department of Justice
report concluded that over half of Native women
have experienced sexual violence and over 80 percent
9 See e.g. Donald Trump, Establishing the Task Force on Missing
and Murdered American Indians and Alaska Natives, Exec.
Order No. 13898, 84 Fed. Reg. 66,059 (Dec. 2, 2019) and Press
Release: U.S. Department of the Interior, Secretary Haaland
Creates New Missing & Murdered Unit to Pursue Justice for
Missing and Murdered American Indians and Alaska Natives
(April 1, 2021).
24
of Native women will be victims of domestic violence
in their lifetime. Andre B. Rosay, Violence Against
American Indian and Alaska Native Women and Men:
2010 Findings from the National Intimate Partner
and Sexual Violence Survey, Nat’l Inst. of Justice,
Office of Justice Programs, U.S. Dep’t of Justice, 44
(2016). In a study of 148 Native women in Seattle,
Washington, 94 percent reported being raped or
coerced in their lifetime with 42 percent attempting
suicide, and 34 percent binge drinking on a weekly or
daily basis after their initial attack. Urban Indian
Health Institute, Our Bodies, Our Stories (2018).
Women in violent relationships are more likely to
experience an unintended pregnancy and seek abortion
services. Christina C. Pallitto, et al., Intimate Partner
Violence, Abortion, and Unintended Pregnancy: Results
from the WHO Multi-country Study on Women’s Health
and Domestic Violence. 120(1) INT. J. GYNECOLOGY &
OBSTETRICS 3-9 (2013). The high rate of sexual assault
among Native women gives rise to a unique set of
health care needs for victims—physical injuries, psychological trauma, exposure to sexually transmitted
infections, and unintended pregnancy. Sexual assault
disproportionately adversely impacts the reproductive
health of Native women.
Yet, there are tremendous barriers for a Native
person to receive health care and forensic examination
in the aftermath of sexual assault, in part due to the
remote nature of some reservations. A 2014 study of
sexual assault services coverage on reservations concluded that only 30.7 percent of reservations are within
a 60-minute driving distance from sexual assault
forensic exam services. Ashley Juraska, et al., Sexual
Assault Services Coverage of Native American Land,
25
10 J. OF FORENSIC NURSING 92 (2014). 381 tribal lands
do not have access to a sexual assault examiner program within a 60-mile driving distance. Id. This means
that a significant number of Native sexual assault
victims may not even have access to Plan B, an emergency contraception option to prevent pregnancy, since
Plan B is primarily offered by a health care provider
in the aftermath of sexual assault. See The Native
American Women’s Health Education Resource Center,
Indigenous Women’s Dialogue: Roundtable Report on
the Accessibility of Plan B As An Over the Counter
(OTC) within Indian Health Service, Native American
Community Board (2012).
It is difficult to determine how many victims
become pregnant as the result of sexual assault or
reproductive coercion. There are limited studies on
rates of sexual-assault related pregnancies specific to
Native women. Generally, various studies have concluded that between 3.1 percent and 7.9 percent of sexual
assault cases (involving penetration) result in pregnancy.10 But to the extent that we can extrapolate
from the high Native victimization rates, Native
people also likely suffer the highest per capita rates of
unwanted pregnancies as a result of assault or
coercion. The high prevalence of intimate partner
violence among Native women additionally suggests
10 See e.g. Kathleen Basil et al., Rape-Related Pregnancy and
Association with Reproductive Coercion in the U.S. 55 AM. J. PRV.
MED. 770 (2018); Jonathan A. Gottschall & Tiffany A. Gottschall,
Are Per-Incident Rape-Pregnancy Rates Higher Than Per-Incident
Consensual Pregnancy Rates, 14 HUMAN NATURE 1, 4 (2003);
Allen J. Wilcox, et al., Likelihood of Conception with a Single Act
of Intercourse: Providing Benchmark Rates for Assessment of PostCoital Contraceptives, 63 CONTRACEPTION 211, 212 (2001).
26
disproportionate impacts in maternal and infant
mortality are attributed to intimate partner violence.
Rosay at 44.
Native adolescents are particularly vulnerable to
assault and unwanted pregnancies. One study concluded that nearly half of Native women gave birth
under the age of 20. Shaye Beverly Arnold, Reproductive Rights Denied: The Hyde Amendment and
Access to Abortion for Native American Women Using
Indian Health Service Facilities, 104(1) AM. J PUB.
HEALTH 1892 (2014). According to a 2017 CDC survey,
50 percent of non-Hispanic AI/AN high school students
engaged in sexual intercourse. Centers for Disease
Control and Prevention, Youth Risk Behavior Surveillance System (2019). Approximately 8 percent of AI/AN
high school students had sexual intercourse for the first
time before the age of 13, as compared to only 2 percent
of NHW high school students, with 21 percent of AI/AN
high school students reported being physically forced
to have sexual intercourse compared to 7 percent of
NHW high school students. Id.
Simply, policies restricting access to abortion
places Native women and their children at greater
risk of violence and fatal outcomes. The federal government is failing to provide Native women with the
comprehensive reproductive health services they need,
including abortion, in the aftermath of sexual assault.
See e.g. The Native American Women’s Health Education Resource Center, Free the Pill: Native American
Women and the Need for “Over the Counter” Access to
Birth Control Pills!, Native American Community Board
(2019) and The Native American Women’s Health
Education Resource Center, Indigenous Women’s
Reproductive Justice: A Survey of the Availability of
27
Plan B and Emergency Contraceptives Within Indian
Health Service, Native American Community Board
(2008).
D. Native People Face Socioeconomic
Barriers That Are Exacerbated by Lack
of Access to Reproductive Health.
Socioeconomic factors are among the most common
reasons for seeking an abortion. See M. Antonia Briggs,
et al., Understanding Why Women Seek Abortions in
the U.S., 13 BMC WOMEN’S HEALTH 29 (2013). Rates
of unintended pregnancy are higher among those
with lower socioeconomic status. According to the
U.S. Census, more than 25 percent of Native women
are living in poverty. U.S. Census Bureau, Poverty
Status in the Past 12 Months by Sex by Age, 2013-2017
American Community Survey 5-Year Estimates, Table
B17001C and B17001 (2017). Numerous studies
illustrate the relationship between abortion and the
economic wellbeing of women and their children.
Anna Bernstein and Kelly M. Jones, The Economic
Effects of Abortion Access; A Review of the Evidence,
Center on the Economics of Reproductive Health,
Institute for Women’s Policy Research (2019). Abortion
access has been shown to increase a woman’s participation in the workforce and the ability to continue
education. Restrictions on abortions can have a downstream effects which result in increased lifetime debt,
bankruptcies, and evictions. Sarah Miller, et al., The
Economic Consequences of Being Denied an Abortion,
NBER WORKING PAPERS 26662, National Bureau of
Economic Research, Inc. (2020). Research shows
children born to women with abortion access had
lower rates of poverty and recipient of public assistance during childhood. Bernstein and Jones at 10.
28
Native women are already disproportionately impacted
by inequities in education and employment. Abortion
restrictions further compound socioeconomic stressors
contributing to poor financial stability. For Native
women, this means exacerbating longstanding disparities and jeopardizing the health of future generations.
IV. THE HYDE AMENDMENT DISPROPORTIONATELY
RESTRICTS NATIVE REPRODUCTIVE HEALTH.
Contrary to Petitioner’s argument that women no
longer need abortion because they have achieved full
gender parity and contraception is widely available,
Native people are less likely to receive any kind of
reproductive health service compared to white women.
Brief for Petitioner at 29-30, Dobbs, (No. 19-1392) and
Megan A. Cahn, et al., Use of Sexual Health Services
Among American Indian and Alaska Native Women.
Women Health. 59(9) NATIONAL LIBRARY OF MEDICINE
953-966 (2019). Moreover, the barriers preventing
Native peoples from accessing reproductive health
are rarely even acknowledged.
In 1976, Congress passed a rider put to the Department of Health and Human Services appropriations bill
that prohibited the use of federal funds for abortions,
except in very limited circumstances, now known as
the “Hyde Amendment”. Act of Sept. 30, 1976, Pub. L.
No. 94-439, § 209, 90 Stat. 1418, 1434. Limited circumstances include in the case of pregnancy resulting
from rape, incest, or “in the case where a woman
suffers from a physical disorder, physical injury, or
physical illness, including a life-endangering physical
condition caused by or arising from the pregnancy
itself, that would, as certified by a physician, place the
29
woman in danger of death unless an abortion is performed.” Omnibus Appropriations Act, 2009, Pub. L.
No. 111-8, §§ 507-08, 123 Stat. 524, 802-03.
The Hyde Amendment has a profound impact on
the ability of IHS—which relies exclusively on federal
funds for its operating budget—to offer comprehensive
reproductive health care services. The IHCIA specifically references the Hyde Amendment’s limitations on
performing abortions using federal funds at IHS
facilities. 25 U.S.C. § 1676. In response to the Hyde
Amendment, IHS promulgated regulations stating that
no IHS facility may provide a woman with an abortion
unless the life of the pregnant person is endangered.
42 C.F.R. §§ 136.51, 136.54. Also see Indian Health
Serv., INDIAN HEALTH MANUAL § 3-13.14(B)(1). In the
case of rape or incest, the alleged rape or incest must
be reported to authorities by the survivor. Memorandum from IHS Director Michael H. Trujillo, M.D.,
M.P.H., Assistant Surgeon General, on Current Restrictions in Use of Indian Health Service Funds for
Abortions for IHS Area Directors and Associate
Directors (Aug. 12, 1996). Moreover, the 1996 memorandum introduced additional barriers not required
by the Hyde Amendment. Under the current rules,
Native patients who become pregnant as a result of
assault cannot self-report their assault to access
abortion services. Instead, the IHS policy requires
that a law enforcement agency or health care provider verify and document the report, essentially
giving law enforcement and health care providers veto
power over a pregnant person’s request for abortion
services. Moreover, this documentation must be made
within 60 days (less than nine weeks) of the reported
assault. Id. Even worse, a 2002 study concluded that
30
various different IHS facilities and individuals are
not familiar with this policy.11 Victims of sexual
assault are the least likely of all violent crime victims
to report their case to authorities, further reducing
the likelihood they can access care.
The federal government has abdicated its treaty
obligations to provide abortions to women dependent
on the federal government for health care. In Harris
v. McRae, this Court upheld the constitutionality of the
Hyde Amendment. 448 U.S. 297, 303-04 (1980). Despite
treaty rights and federal trust responsibility to Native
people, the Court did not address the impact of the
Hyde Amendment as applied to Native American
women. Id. The Court held “that the Hyde Amendment
does not impinge on the due process liberty recognized
in [Roe v.] Wade.” Id. at 318, reasoning that an indigent
women’s access to abortion is restricted by her financial
position, not the federal government’s prohibition on
using federal funds for abortions. Yet, for Native
women, both their financial status and their political
status prevent their ability to access abortion services.
The Hyde Amendment violates the federal obligation
to provide health care services to Native people.
11 Kate Schidnler et al., supra.
31
V.
PREVENTING, INSTEAD OF PROVIDING ACCESS TO
MEANINGFUL REPRODUCTIVE HEALTH CARE, IS A
HUMAN RIGHTS VIOLATION AND A VIOLATION OF
THE TRUST RESPONSIBILITY.
The Hyde Amendment hinders the ability of all
low-income women to terminate a pregnancy and
disproportionately affects women of color. But it
discriminates against Native women specifically
because they are entitled to receive health services
from a federal agency. In 2002, researchers found
that sixty-two percent of IHS service units did not provide abortions, even when the mother’s life was in
danger. That year, only five percent of IHS facilities
performed abortions. Native American Women’s Health
Education Resource Center, Indigenous Women’s Reproductive Rights: The Indian Health Service and Its
Inconsistent Application of the Hyde Amendment,
Native American Community Board (2002) and Heidi
Guzman, Roe on the Rez: The Case for Expanding
Abortion Access on Tribal Land, COLUM. J. RACE & L. 9,
95 (2019). A review of available data from the Epidemiology Data Mart, which houses patient registration
and health care visit information from IHS, reveals
that only 7 AI/AN women visited an IHS-funded facility
for an abortion nationally from 2002 to 2021. This
data is limited to information from 33 reporting. U.S.
Dep’t of Health and Human Services, Indian Health
Service, Epidemiology Data Mart, 2002-2021. The
low number of visits to an IHS facility for abortion over
two decades suggest abortion services are primarily
outsourced to states, which are filling a gap in federal
obligations to provide meaningful healthcare to Native
people.
32
The Hyde Amendment, coupled with anemic IHS
funding levels, have resulted in a de facto ban on
abortion services at IHS for victims of sexual assault.
This is a troubling reality not only because it jeopardizes the ability of women who rely on IHS as their
primary health care provider to control their reproductive destiny, but also because of the startlingly
high rate of sexual assault in Indian Country and the
unfortunate reality that women might become
pregnant after sexual assault. Native women are
forced to rely on private providers for abortion care,
the banning of which would further decimate Native
women’s access to this critical component of reproductive health and self-determination.
CONCLUSION
Despite the obligations embedded in the Trust
Responsibility, Native people are the heirs of a
legacy of forced assimilation, child removal, forced
sterilization, and sub-standard care that includes an
effective ban on abortion due to the Hyde Amendment.
They experience alarming rates of sexual violence,
infant and maternal morbidity and mortality, and
attendant mental, physical, and socioeconomic trauma.
And instead of stepping forward, the federal government has stepped back, delegating its fiduciary duty to
provide reproductive health care to private healthcare
providers who are subject to state abortion laws.
33
States, including Mississippi, have no authority
to determine the reproductive decisions of Native
people. Upholding the proposed Mississippi pre-viability
abortion ban will open yet another dark chapter of
depriving Native people the right and dignity to choose
if, when, and how to have a family. The decision of the
Fifth Circuit should be affirmed.
Respectfully submitted,
LAEL ECHO-HAWK
COUNSEL OF RECORD
MTHIRTYSIX PLLC
700 PENNSYLVANIA AVE. SE
2ND FL – THE YARD
WASHINGTON, DC 20003
(206) 271-0106
LAEL@MTHIRTYSIXPLLC.COM
LAUREN VAN SCHILFGAARDE
UNIVERSITY OF CALIFORNIA
LOS ANGELES SCHOOL OF LAW
385 CHARLES E. YOUNG DRIVE EAST
BOX 951476
LOS ANGELES, CA 90095
(310) 764-7344
VANSCHILFGAARDE@LAW.UCLA.EDU
COUNSEL FOR AMICI CURIAE
CECILIA FIRE THUNDER; NATIONAL INDIGENOUS
W OMEN ’ S R ESOURCE C ENTER ;
THE N ATIVE A MERICAN C OMMUNITY B OARD ;
AND A DDITIONAL A DVOCACY O RGANIZATIONS
AND INDIVIDUALS
SEPTEMBER 17, 2021
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.