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Could tribes go into the abortion business?

If the Supreme Court lets states outlaw abortion, could abortion clinics still operate on Native American reservations in those states?

In theory, the answer appears to be “yes,” because reservations are federal land, and states can’t legislate what happens there. It’s actually not that simple, though, so any categorical statement is problematical; legal experts will say, “it depends” and “we’re not sure.” A likely outcome is some reservations could and others couldn’t.

And that’s if Congress doesn’t prohibit abortions on reservations, which it could do if Republicans were in control (but won’t happen under Democrats).

Whether they would, or wouldn’t, depends on the tribes. They could pass tribal laws against abortion, or not invite abortion clinics onto their land. I don’t know what they would do; that probably varies by tribe.

Meanwhile, states run by militantly anti-abortion Republicans are now setting their sights on trying to prohibit abortions beyond their own borders (see story here). For example, in Missouri they’re considering making it illegal for Missouri residents to get abortions elsewhere. In other words, they’re threatening to arrest and prosecute anyone living in Missouri who gets an abortion in Illinois. (Would this apply to college students paying nonresident tuition?)

That raises some intriguing constitutional questions, which might become moot, if the Supreme Court’s conservatives start acting like that judge in Florida who decided the Centers for Disease Control has no authority to prevent the spread of infectious diseases. Then all the meticulous legal scholarship on jurisdiction over activities on Native American reservations might go out the window, too. And if Republicans try another coup, and succeed the next time, they might be inclined to terminate all the reservations, give the land to mining and logging interests, stuff Native American kids into boarding schools to Americanize them, and order their parents to assimilate and become “Americans” or lose their citizenship.

At present, tribes can do things on their reservations that other people can’t do off-reservation, such as operate casinos (which is authorized by an express act of Congress), selling tax-free cigarettes (because states can’t tax on reservations), and so on. So abortion providers in hostile states might cast eyes on reservations as potential abortion havens. So far, though, that hasn’t happened, despite years of state harassment, and I don’t know if they’re even thinking about it.

My guess is that reservations won’t become abortion havens. Native American religions aren’t against it, nor does Native American culture have taboos against it, but Native Americans have their own traditions and cultural practices regarding family planning, and probably would see this as importing a non-Native problem and conflict into their communities. The only reason to do it is money, and the revenue might not be enough to justify the trouble it invites. They don’t want Republicans butting into their reservation affairs; they already have enough trouble with Republicans off-reservation. For more reasons why reservations are unlikely to become abortion havens, see article here.

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