Access Denied: Native American Women and the Wronging of Abortion Rights
adapted by NWHN staff from a report by Charon Asetoyer, Kati Schindler and Anna Jackson
From tax loopholes that only the rich can exploit to sentencing policies that disproportionately imprison the poor, this country has a long and wide-ranging history of inconsistently applying laws and regulations to different segments of the population. In the case of Native Americans — a population that struggles with enormously high rates of poverty, rape, incest and other violent sexual crimes — one example of this inconsistency involves reproductive health. Native American women have far less access to abortion services than the law entitles them to, a reality that threatens their health, their rights and their lives.
THE HYDE AMENDMENT AND PUBLIC FUNDING OF ABORTION
Traditionally in Native American communities, matters pertaining to women were the business of women. All decisions concerning a woman's reproductive health were left up to her as an individual, and her decision — often formed with the assistance of other women within her society — was respected.
Today, however, Native American women are no longer free to make decisions concerning their reproductive health and rights. Instead, these decisions are regulated by the federal government and by legislation that limits the reproductive health services provided by the Indian Health Service (IHS), an agency of the U.S. Public Health Service that operates under the Department of Health and Human Services. IHS is the primary health care provider for all members of federally recognized Native American tribes and their descendants. Census data from 1990 estimated the total size of the American Indian population at 1.937 million.
Policies on public funding of abortion affect all women who receive their health services through federally funded programs such as Medicaid and IHS. Initially, when abortion was legalized in 1973, federal funds for abortion services were not subject to restrictions. But in 1976, passage of the Hyde Amendment forbade the expenditure of federal funds for abortion services, except in cases where the pregnancy threatened the woman's life. In its current version, enacted in 1997, the Hyde Amendment loosened those restrictions slightly to allow public funding for abortion only if the pregnancy threatens the woman's life or is the result of an act of rape or incest.
Even though the Hyde Amendment restricts the policies or all federally funded health care programs, it does not affect all women who rely on publicly funded health care in the same way. In 2000 for example, 17 states supplemented federal Medicaid funds with their own funds to pay for medically necessary abortions in addition to those that federal law requires them to cover IHS, which is subject to funding regulations decided by the U.S. Congress, including the Hyde Amendment, implemented no such expansion. As a consequence, Native American women who receive health care services through the HIS remain subject to the restrictions of the Hyde Amendment, even if they live in one of those 17 states. What's worse, IHS has repeatedly violated the Hyde Amendment in ways that further restrict abortion services for Native American women.
IHS ABORTION POLICIES IN PRACTICE
In June and July 2002, the Native American Women's Health Education Resource Center (NAWHERC) conducted a survey to assess Native American women's access to legal abortions through the Indian Health Service. The findings showed that 85 percent of the surveyed Service Units the term for the hospital or clinic on each reservation were noncompliant with the official IHS abortion policy and thus in violation of the Hyde Amendment. In 62 percent of the surveyed Service Units, staff did not provide abortion services or funding even in cases where pregnancy endangered the woman's life.
Only 5 percent of the Service Units contacted performed abortion procedures at their facilities. NAWHERC's analysis consequently revealed a notably small number of abortions performed at or funded by IHS clinics over the last two decades. In the 21 years with adequate record keeping, only 25 abortions were performed or funded by IHS. In 1984, for example, a year in which there were 12,453 births at IHS facilities, the agency funded only one abortion, performed at a contract care facility. This does not mean that only 25 Native American women had abortions during those 21 years. It strongly suggests, however, that many Native American women had to obtain abortions at their own expense, exacerbating their economic hardship, while man) other women who sought abortions simply did without.
The results also demonstrated that IHS personnel at individual Service Units have a significant degree of autonomy in their handling of abortion cases. In many cases, IHS leaves a number of variables impacting care to the staff in charge. These include the standard of abortion counseling, the information provided to women interested in abortion and the referrals to alternative abortion providers. In many IHS Service Units, no standardized protocol is followed. Not surprisingly. Service Units often show significant variance from one to another in their provision of abortion services.
Another finding of the NAWHERC survey was that IHS personnel frequently demonstrated uncertainty regarding the services to which Native American women are legally entitled. On several occasions, IHS personnel stated that Native American women arc also covered by Medicaid and therefore have access to abortion services through Medicaid. This assumption is incorrect, as not every Native American woman is financially eligible to receive Medicaid coverage.
The question of Medicaid eligibility has become even more important in recent years, with the rise of casinos on reservation land throughout the country. The casinos have provided many Native American women with low-wage jobs that make them ineligible for Medicaid coverage but leave them without the financial means to pay for private insurance coverage. For many of these women, IHS is the sole provider of health services. The assumption that Native American women are covered by Medicaid undermines the status of HIS as the principal health care provider for Native American people.
A TIME TO RAISE OUR VOICES
The legalization of abortion was an important step in improving women's rights. Ensuring that low-income women have the financial means to realize this right is another issue, and one that often is neglected. As long as funding for abortion is not ensured, the right to choose remains a privilege only for those who can afford it.
Local IHS Service Units often refuse to provide Native American women even the limited access to abortion services to which they arc legally entitled under the already restrictive Hyde Amendment. This failure to provide services is not only a violation of federal law under the Hyde Amendment, but also a human rights violation.
To remedy the situation, NAWHERC has formed a coalition of organizations with long histories of advocating for women's health, including the National Abortion Federation, the American Civil Liberties Union, the Center for Reproductive Rights, the Aberdeen Tribal Chairman's Health Board and the American Indian Law Alliance. Our goal is to influence IHS to provide safe abortion services to all Native American women requesting them, as well as to call on Congress to establish an exemption of the Hyde Amendment restrictions within IHS. On a broader level, our study demonstrates the urgent need to repeal the Hyde Amendment for its disproportionately negative effect on this country's most underserved populations.
For more on the health of Native American women, visit www.nativeshop.org or call 605- 487-7072.
This article was adapted from Indigenous Women's Reproductive Rights: The Indian Health Service and Its Inconsistent Application of the Hyde Amendment, published by NAWHERC in October 2002. Charon Asetoyer is executive director of NAWHERC in Lake Andes, South Dakota.
By the Numbers: Native American Women
• In 1996, the incidence of rape among Native American women was 31/2 times the incidence among women of all races.1
• In the 1994 South Dakota Native American Youth Behavior Survey, 87 percent of females in 12th grade reported having sexual intercourse. Ninety-two percent of them reported being forced against their will.
• Forty-six percent of Native American mothers are younger than 20 when they have their first child, versus 25 percent of mothers of all races and 22 percent of white mothers.2
• In 1996, more than twice as many violent crimes were committed against Native American women than against white women.3
• In 1990, 13 percent of all American Indian women were unemployed, compared with 6 percent of women of all races.4
1. 7 per 1,000 Native American women were the victims of rape in 1996, compared with 2 per 1,000 women of all races. American Indians and Crime, 1996.
2. Indian Health Service. Trends in Indian Health, 1998-1999.
3. 98 per 1,000 Native American women were the victims of violent crime in 1996, compared with 40 per 1,000 white women. American Indians and Crime, 1996.
4. Indian Health Service. Indian Women's Health Issues: Final Report. Tucson, AZ: U.S. Public Health Service, 1991.