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Will tribal land provide safe haven when Oklahoma's abortion ban goes into effect? Experts say not anytime soon

Abortion advocates march in Washington, D.C. in October 2021.
Gayatri Malhotra / Unsplash
Abortion advocates march in Washington, D.C. in October 2021.

An Oklahoma law set to go into effect in August says that doctors who perform abortions could be guilty of a felony and punished by up to 10 years in prison.

Under the 2020 U.S. Supreme Court ruling in McGirt v. Oklahoma, nearly 40 percent of eastern Oklahoma, including the city of Tulsa, is reservation land, which is subject to tribal and federal laws. That means a doctor who is a citizen of a federally recognized tribe could set up a practice providing abortion services.

But experts say people shouldn't count on it.

Federal law already restricts abortion care under the Hyde Amendment, which was passed in 1976. It forbids the use of federal funds to provide abortions except in the cases of rape, incest or to save the mother’s life. Indian Health Services is federally funded, so any clinic performing abortions in Indian Country would have to privately funded.

Aila Hoss, an assistant professor of law at the University of Tulsa, said it’s even more complicated than that. There is an opportunity for tribal citizens with medical licenses to perform abortions because the state doesn’t have the authority to prosecute them.

Beyond criminal prosecution, Hoss said there could be other consequences. For example, doctors in Oklahoma receive their licenses from the state, so they could face a fine or have their license revoked.

"They want to maintain their license, and so even if we are applying our traditional civil jurisdiction rules in Indian Country, providers have to be incentivized to want to maintain their license," Hoss said.

And if the Texas-style abortion ban becomes law in Oklahoma, doctors could face consequences in civil court because the bill would allow private citizens to hold each other accountable. That bill — Senate Bill 1503 — is still pending in the Oklahoma legislature.

There is also no precedent for this type of situation, and no tribal nation in Oklahoma has commented since the near-total abortion ban — Senate Bill 612 — was signed into law on April 12.

In 2006, Cecilia Fire Thunder, then President of the Oglala Sioux Tribe in South Dakota, announced that their tribal nation would consider opening an abortion clinic in the face of that state’s abortion ban.

"To me, if a woman who's been sexually assaulted finds herself pregnant, and she makes the decision to terminate that pregnancy caused by violence, that's her choice, you know. I don't know what the state legislatures were thinking," Fire Thunder told NPR in 2006.

She was impeached several months shy of her second-year term.

"No one wants to be the 'abortion tribe,'" said Sarah Deer, a citizen of the Muscogee Nation and tribal law expert.

Deer is an advocate for Indigenous women and says that even though Indian Health Services technically offers abortions, their published policies are inconsistent.

One policy says abortion is allowed only to save the life of a mother, but then a special general memorandum from 1996, which is not included in the Indian Health Manual, says abortions are allowed in the cases of rape and incest. However, the victim must report the assault within 60 days, and it must meet a specific definition for rape or incest.

"One of the things I would want to ask IHS is, 'So what is the actual current policy about abortion? Why are the manual and the memorandum entirely inconsistent?'" said Deer.

Deer said she thinks the 60-day reporting requirement is unnecessary under the Hyde Amendment and that it further traumatizes victims.

While some in Oklahoma have openly wondered whether the abortion restrictions under Senate Bill 612 provide an opportunity to test tribal sovereignty under McGirt v. Oklahoma, Hoss warns it could set a precedent.

"Regardless of the kind of controversy that might arise in terms of acting on this issue, what precedent is this going to set for every other tribe and every other enforcement issue?" Hoss wondered. "In terms of not just health care, but when states are going to be able to assert a tax authority or regulatory authority. That has repercussions further down the line outside of this issue."

The law is set to go into effect in August, but Oklahoma Gov. Kevin Stitt says he expects it to be challenged.

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Allison Herrera covered Indigenous Affairs for KOSU from April 2020 to November 2023.
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