Abstract

Excerpted From: Rebecca M. Kamp, The Amplified Federal Obligation: Why Dobbs v. Jackson Women's Health Organization Amplifies the Federal Government's Obligation to Provide Comprehensive Reproductive Health Care in Native American Communities, 48 American Indian Law Review 301 (2023-2024) (201 Footnotes) (Full Document)

One in three Native American women will be the victim of rape in their lifetime. Native American women are two and a half times more likely to be victims of sexual assault than any other ethnic group. When Native women are victims of sexual assault, they are twice as likely to need some form of medical care when compared to White women. Although they are twice as likely to need medical care, one-third of Native women are unable to access the necessary medical care. Historically, Native Americans have experienced significant health disparities when compared to other Americans. In an effort to address the health disparities Native Americans face, Congress has dedicated resources to tribes to help close the gap in health services provided to tribes. As a result of various treaty and statutory obligations, Congress created the Indian Health Service (IHS)--the agency tasked with providing health care to over two and a half million American Indians.

For years, Native Americans have been advocating for IHS to receive increased funding so that IHS can meet the health care needs of tribal members. One area of health care that has been at the heart of calls for increased funding is reproductive health care. For the Native women who receive health care from IHS, accessing reproductive health care is frequently difficult, if not impossible. While most non-Native women have readily available access to things like birth control, Native women using IHS have not always had accessible birth control. Further demonstrating the lack of necessary reproductive care services, IHS only provides abortion care in pregnancies that result from rape or incest or are a threat to the life of the mother. As the nation continues to react and adjust to the overturning of both Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey, the federal government has an obligation to ensure Native American women have access to reproductive health care, including abortion care.

This Note examines the history of federal health care for Native Americans and the amplified obligation of the federal government to continue providing reproductive health care and abortion services through IHS in light of Dobbs v. Jackson Women's Health Organization. Part II examines prior Supreme Court abortion precedent and the decision in Dobbs. Part III examines the federal obligation to provide health care to Native Americans and the background of the federal health care system for Native Americans. Part IV examines the impact of Dobbs on Native women by looking at the state of reproductive care offered by IHS and argues that an increase in IHS funding is necessary in light of Dobbs.

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The relationship between tribes and the federal government is unique and has left the federal government with obligations; one of which is to provide health care to Native Americans. Through the creation of the Indian Health Service (IHS), the federal government provides health care to over two million Native Americans. Part of providing health care is providing access to reproductive care and abortion services. When Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey were the law of the land, abortion access was constitutionally protected. Because states could not place an undue burden on women seeking a pre-viability abortion, Native women that were unable to access abortion care at an IHS facility could access abortion care at non-IHS facilities. Although IHS continually failed to provide abortions in the limited circumstances it was authorized, IHS had a backstop of other clinics that could provide abortion care to Native women.

Now that Dobbs v. Jackson Women's Health Organization has returned abortion regulations to the states, IHS no longer has the extra layer of protection that was previously provided. Although abortion services provided by IHS are limited by the Hyde Amendment, abortion services are still available and should be accessible. When the federal government and tribes entered into treaties and statutory obligations, the federal government gave promises to the tribes. One of those promises was to provide health care for tribal members. Part of providing health care is providing comprehensive reproductive health care, including access to abortion. As the nation begins to react and adjust to the ruling of Dobbs v. Jackson Women's Health Organization, it is imperative that the federal government accept the amplified obligation to provide comprehensive reproductive health care and to ensure Native women have access to abortion.

2024 Graduate, University of Oklahoma College of Law.