Kalle Benallie
ICT
The Supreme Court on June 13 unanimously upheld the federal Food and Drug Administration’s approval of the abortion pill, mifepristone, and the FDA’s subsequent actions to ease access to it.
The medication was used in nearly two-thirds of all abortions in the U.S. last year. The medication is for pregnancies under 10 weeks and cannot substitute for an in-clinic abortion in all cases.
Does the ruling affect Indian Country, if at all?
“Mifepristone is available at federal IHS facilities when clinically indicated and for use consistent with federal law,” IHS said in a statement.
Rachael Lorenzo, executive director at Indigenous Women Rising, said Indian Health Service may or may not have mifepristone available.
“There’s no standardization of what they have in stock whether it’s pills, contraception. Every facility is different so not every facility will offer the same kind of services,” Lorenzo, Mescalero Apache and Laguna Pueblo, said. “But for Native folks who want pills mailed to them, which is one of the big sticking points to that particular case, they’re able to still get abortion pills by mail.”
In January 2023 the FDA allowed pharmacies to start applying for certification to distribute mifepristone in person or by mail.
In March, CVS and Walgreens began dispensing the medication in person in a few select states for those who have a prescription from a certified prescriber. The stores will not be selling mifepristone in states that prohibit abortion. Receiving the medication by mail is not available yet. Before the change, patients had to pick up the medication in person at a clinic, medical office or hospital.
Indigenous Women Rising is an Indigenous-led reproductive justice organization that operates an abortion fund and emergence fund for all Native and Indigenous peoples through accessible health education, resources and advocacy.
The question as to why there’s no clear requirements IHS follows regarding sexual and reproductive health may be dependent on the agency being under the jurisdiction of the Hyde amendment. The amendment, passed in 1977, prevents federal funding for abortions unless the pregnancy is a result of rape, incest, or if the pregnancy endangers your life.
The Supreme Court ruled on another abortion case on June 27 stating that federal law overrides Idaho’s abortion ban in emergency situations in which a pregnant patient’s health is at serious risk.
Lorenzo recalled how their IHS facility, Acoma-Canoncito-Laguna Indian Health Center, didn’t have an OB-GYN who has experience managing emergency pregnancies.
“That’s just one example of how inconsistent care is across Indian Country. Aside from geographic issues and barriers, there’s also an issue of what kind of services are being offered,” they said.
Ten years ago a report in the American Journal of Public Health said no facility-based IHS pharmacies keep Mifepristone in stock and a report in the journal Contraception, published in 2021, said mifepristone was not available at IHS facilities with one exception.
Lorenzo said part of the organization’s work is urging tribal leaders to see the value in sexual and reproductive health and advocating for trained providers in pregnancy-related care — ranging from abortions, births, miscarriage management — at Indian Health Service hospitals and facilities.
“It really varies from facility to facility and the direction that’s given to providers from the medical director,” Lorenzo said.
They added that’s Indigenous Women Rising isn’t trying to change people’s minds but support those who need it.
“Stigma isn’t going to stop abortion care, that it’s only going to make it harder for our people to access safe care and knowledgeable providers,” Lorenzo said.
Tribal nations could pave a way for local abortion access
In the fallout of the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization in 2022, that ruled abortion rights are not granted in the Constitution of the United States, there were viral discussions on social media about how tribal nations could offer their own abortion services not only to Indigenous populations but all non-Indigenous people, possibly overriding anti-abortion laws.
However, Lauren Van Schilfgaarde, assistant professor at UCLA School of Law, and four other authors wrote in the article “Tribal Nations and Abortion Access: A Path Forward”, published in the Harvard Journal of Law and Gender, that it’s not that simple.
The authors wrote how tribal sovereignty is not all encompassing for every issue and how tribal sovereignty has been infringed upon for centuries.
“We just wanted to make a point that it was hubristic, and naive and frankly offensive that so many people – that their reflex was to leverage tribal sovereignty for their own personal gains without having any concept of how tribal sovereignty has just been eroded but they didn’t have to pay attention before because it didn’t impact them,” Van Schilfgaarde, Cochiti Pueblo, said.
But the article offered infrastructure considerations where tribes could assert their sovereignty. One of them being about how tribes could offer medication abortion services by enacting a tribal code that authorizes those persons under its jurisdiction to receive abortion medication through telehealth services and proactively authorize abortion under tribal law.
“However, because the medical provider must be licensed, they will still face threats of state regulation, including attempts to revoke their license, particularly if they are licensed in an anti-abortion state. Additionally, states may ultimately attempt to hold the person who receives an abortion liable or prosecute them,” the article said.
Although Van Schilfgaarde added that this is speculation because “there has not been a case where state abortion has gone against a tribal regulation. That just hasn’t been regulated,” she said.
The Associated Press contributed to this report
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