For help on Election Day, contact the Native American Rights Fund’s helpline at 866-OUR-VOTE (866-687-8683) for election protection volunteers who can assist voters in Indian Country. The organization can also be reached at vote.narf.org.
Mary Annette Pember
ICT
Measures to expand access to abortion are on the Nov. 5 ballot in 10 states, with one state – Nebraska – offering dueling measures that would also give voters an option to further restrict abortions.
The initiatives – in Arizona, Colorado, Florida, Maryland, Missouri, Montana, Nevada, South Dakota, Nebraska and New York – would largely incorporate a woman’s right to access abortion into state constitutions.
SUPPORT INDIGENOUS JOURNALISM. CONTRIBUTE TODAY.
The most sweeping initiative, Proposition 1, the Equal Rights Amendment, in New York, would include constitutional protections not only for abortion but also for birth control and IVF, and protections against discrimination on the basis of ethnicity, national origin, age, disability, sexual orientation, gender identity.
Even if access to abortion is approved across the 10 states, however, Native women will still face barriers to abortion access because of restrictions on federal health funding and failure to acknowledge tribal sovereignty in the wake of the U.S. Supreme Court’s Dobbs decision granting states authority to restrict abortions.
“Native people, particularly those living on tribal lands have been disproportionately reliant on off-reservation abortion services,” said Lauren van Schilfgaarde, a citizen of Cochiti Pueblo and an assistant professor at the University of California Los Angeles School of Law.
“[Before Dobbs] Native people already had to travel in order to access abortion care,” Schilfgaarde told ICT. “Now they need to travel much, much farther.”
In 2022, the Supreme Court issued its decision in Dobbs v. Jackson, overturning the 1973 Roe v. Wade decision that had protected a woman’s right to abortion. Under Roe v. Wade, women could legally choose abortion during the first trimester of pregnancy up until the fetus could live outside the womb, usually between 24 to 28 weeks after conception. States could regulate the procedure after the first trimester, except when deemed necessary to preserve the life or health of the mother. States, however, could not outlaw abortion.
Under the Dobbs decision, the power to regulate abortions fell to the states. Currently, 21 states now ban or restrict the procedure, causing the deaths of a growing number of women with pregnancy complications who could not get life-saving treatment. Thirteen states – including Oklahoma and Missouri – have outright bans on abortions.
For Native Americans, the abortion issue has been complicated by the so-called Hyde Amendment, which was approved by Congress in 1977 and which went into effect in 1980. The amendment, amended in 1993, now allows exceptions for rape, incest or to preserve the life of the mother.
Many Native women, especially those living on tribal lands, rely on the Indian Health Service or tribally operated clinics funded through federal Medicaid dollars for health care. Data on the number of abortions paid for by the Indian Health Service are hard to come by, but a study conducted by the Native American Women’s Health Education Resource Center found that IHS performed 25 abortions from 1973 to 2002.
“For programs like Medicaid that involve use of federal funding, federal rules (specifically the Hyde Amendment) preclude the use of federal funds for abortion services except under limited circumstances involving rape, incest or the life of the mother being in danger,” officials with the Centers or Medicare and Medicaid Services wrote in an email to ICT.
Currently, 16 states have policies that direct Medicaid to pay for all or most medically necessary abortions, often using state funds to do so. Nine of these states require a court order and seven provide funds voluntarily. Unlike states, however, tribes can’t use Medicaid funds to pay for abortion despite their sovereign status.
According to Schilfgaarde, even if tribes could provide their own funding for abortions, they don’t have legal authority to do it.
“Supreme Court decisions … have invited the encroachment of state law onto tribal lands,” she said. “This is the opposite of sovereignty.”
Supporters of the ballot measures, however, say the initiatives could open the door for life-saving care for Native women.
“The restrictions of abortion services in South Dakota and other states that have outlawed abortion have had a huge impact on Native women,” according to Charon Asetoyer, executive director of Native American Women’s Health Education Resource Center in an email to ICT. Asetoyer is a citizen of the Comanche Nation.
“It has denied Native women basic health care and in some cases it has caused life-threatening situations. Health care is a human right, and South Dakota along with the other states that have outlawed abortion have violated our human right to basic health care,” wrote Asetoyer, a citizen of the Comanche Nation.
Native women are more likely than other women to experience complications and death during pregnancy, and one in three Native women report being sexually assaulted in their lifetimes.
Here are the abortion initiatives on the Nov. 5 ballot.
Arizona
Arizona’s ballot will include Proposition 139, the Right to Abortion Initiative. A “yes” vote would support amending the state constitution to provide the fundamental right to abortion up to the point of viability for the fetus. The initiative follows an April 2024 decision by the Arizona Supreme Court upholding an 1864 law prohibiting abortion except to save the life of the mother. The state Legislature voted to repeal the 1864 law, and abortion is currently legal in Arizona for up to 15 weeks of pregnancy. More than 319,000 people identify solely as American Indian or Alaska Native in the state, which is home to 22 federally recognized tribes.
Colorado
In Colorado, Amendment 79, the Right to Abortion and Health Insurance Coverage Initiative, would support the right to abortion in the state constitution and allow for the use of public funds for the procedure. Colorado is now one of 10 states that does not restrict abortion after a specific point in pregnancy. More than 70,000 people identify solely as American Indian or Alaska Native. There are two federally recognized tribes in the state.
Florida
In Florida, which has a near-total ban on abortion, the citizen-initiated Amendment 4, the Right to Abortion Initiative, supports adding the following language to the state constitution’s declaration of rights: “No law shall prohibit, penalize, delay or restrict abortion before viability or when necessary to protect the patient’s health as determined by the patients healthcare provider.” Abortion in Florida is currently banned at six weeks or later, and state Medicaid coverage is banned except in limited circumstances. There are two federally recognized tribes located in Florida where about 94,000 people claim solely to be American Indian or Alaska Native.
Maryland
Maryland’s ballot includes Question 1, Right to Reproductive Freedom Amendment. A “yes” vote would support a legislatively referred amendment adding a new article to the state constitution establishing a right to reproductive freedom. The right is defined to include “the ability to make and effectuate decisions to prevent, continue or end one’s own pregnancy.” Currently Maryland has protective abortion policies in place. About 31,000 people identify solely as American Indian or Alaska Native. There are no federally recognized tribes in Maryland
Missouri
Missouri’s ballot includes Amendment 3, Right to Reproductive Freedom Initiative, a citizen-initiated measure. A “yes” vote would support adding to the state constitution a fundamental right to reproductive freedom defined to include abortion and all matters relating to reproductive health care. Abortion is currently banned in Missouri with very limited exceptions. Around 30,000 people in the state identify solely as American Indian or Alaska Native. There are no federally recognized tribes in Missouri.
Montana
In Montana, Constitutional Initiative 128, the Right to Abortion Initiative is a citizen-initiated measure supporting a constitutional amendment providing “the right to make and carry out decisions about one’s own pregnancy including the right to abortion,” and allowing the state to regulate after the fetus is viable when “medically indicated to protect the life or health of the pregnant patient.” A little over 67,000 people identify solely as American Indian or Alaska Native in the state, which is home to nine federally recognized tribes.
Nebraska
Nebraska has become the first state to offer dueling abortion initiatives. Initiative 439, the Right to Abortion Intiative, would establish a fundamental right to abortion until fetal viability. Initiative 434 would prohibit abortions after the first trimester except to protect the life of the patient or in cases of rape or incest. Both ballots were initiated by citizens. Abortion in Nebraska is currently banned at 12 weeks or later, and no Medicaid funds or private insurance may be used for the procedure. About 23,000 people identify solely as American Indian or Alaska Native in Nebraska, which is home to four federally recognized tribes.
Nevada
In Nevada, Question 6, Right to Abortion Initiative is a citizen-initiated measure supporting a state constitutional right to abortion, allowing the state to regulate after fetal viability except when needed to protect the life of the pregnant patient. Abortion in Nevada is currently banned at 24 weeks. Around 43,000 people identify solely as American Indian or Alaska Native live in Nevada, which has 28 federally recognized tribes.
New York
New York’s Proposition 1, Equal Rights Amendment would change the state constitution’s Bill of Rights to expand the list of protected classes. According to City and State New York, the Amendment would add protections for “sexual orientation, gender identity, gender expression, pregnancy, pregnancy outcomes and reproductive healthcare and autonomy.” New York currently includes abortion protections but the Amendment would change the state constitution to protect against potential amendments or repeal. Current law bans abortion at 24 weeks or fetal viability, allows use of state funds as well as private insurance, and provides protections from harassment or harm when entering an abortion clinic. About 149,000k people identify solely as American Indians or Alaska Natives; the state is home to eight federally recognized tribes.
South Dakota
South Dakota is home to one of the most restrictive abortion laws in the country, and is one of 10 states without rape or incest exceptions; the procedure is allowed in the state only to prevent the mother’s death, but doctors may have to wait to perform a life-saving abortion until women are actively dying. The November ballot, however, will include Amendment G: Abortion Rights, a citizen-driven constitutional amendment that would establish the right to abortion during the first trimester of pregnancy, but would allow the state to regulate during the second trimester “only in ways that are reasonable related to the physical health of the pregnant woman.” During the third trimester, the state would be able to regulate or prohibit the procedure “except when abortion is necessary, in the medical judgment of the woman’s physician, to preserve the life and health of the pregnant woman.” South Dakota currently criminalizes abortion except to protect life of the woman. More than 77,000 people identify solely as American Indian or Alaska Native in South Dakota, which is home to nine federally recognized tribes.
Our stories are worth telling. Our stories are worth sharing. Our stories are worth your support. Contribute today to help ICT carry out its critical mission. Sign up for ICT’s free newsletter.